Mary Ellen Griffith, Esquire
Ancil G. Ramey, Esquire
Bell & Griffith Jeffrey K. Phillips, Esquire
Princeton, West Virginia Steptoe & Johnson
Attorney for Plaintiffs Charleston, West Virginia
Attorneys for Defendants
JUSTICE SCOTT delivered the Opinion of the Court.
1. A common law privilege is accorded the government against the disclosure
of the identity of an informant who has furnished information concerning violations of law
to officers charged with the enforcement of the law. However, disclosure may be required
where the defendant's case could be jeopardized by nondisclosure. Syl. Pt. 1, State v.
Haverty, 165 W.Va. 164, 267 S.E.2d 727 (1980).
The provisions of this state's Freedom of Information Act, West Virginia
Code §§ 29B-1-1 to -7 (1998), which address confidentiality as to the public generally, were
not intended to shield law enforcement investigatory materials from a legitimate discovery
request when such information is otherwise subject to discovery in the course of civil
3. 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 maintaining the confidentiality of such
4. Before a circuit court is required to engage in an in camera inspection of records and information compiled by an internal affairs division of a police department to make a determination regarding the production of such documents through discovery, the party opposing disclosure must first make a substantial threshold showing that specific harms are likely to result from the disclosure of the requested materials.
This case arises on certified questions from the Circuit Court of Mercer County and presents issues concerning civil discovery relative to an internal affairs investigation conducted by the West Virginia State Police in connection with allegations of police misconduct. The questions presented are as follows:
1. Where civil discovery is sought of records of a police internal affairs investigation, is the compelled production of such records prohibited by a common law (1) law enforcement privilege; (2) executive privilege; or (3) official information privilege?
2. Where civil discovery is sought of records of a West Virginia State Police internal investigation, is the compelled production of such records prohibited by statute pursuant to (1) W.Va. Code § 29B-1-4(4), which exempts from the Freedom of Information Act, Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement; (2) 81 C.S.R. 10-6.3, which provides, All documents concerning complaints alleging employee misconduct shall be considered confidential; and (3) 81 C.S.R. 10-3.3, which provides, The Superintendent shall ensure the confidentiality of all documents and reports relating to the investigation of any complaint through strict control of files both within and outside the Unit's offices?
3. Where civil discovery is sought of State Police personnel records, is the compelled production of such records prohibited by statute pursuant to W.Va. Code § 29B-1-4(2), which exempts from the Freedom of Information Act, Information of a personnel nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance?
Upon consideration of these three questions, we answer them in the negative.See footnote 1 1
In response to a notice of depositionSee footnote 3
and subpoena duces tecum,See footnote 4
which Plaintiffs requested records relative to the internal affairs investigation of complaints
filed against Trooper Jones as well as the trooper's personnel file
,See footnote 5
Defendants filed a motion
seeking a protective order. Treating the motion as a partial summary judgment ruling, the
denied the same, rejecting Defendants' assertion that both statutory and common
law privileges were applicable. Based on its conclusion that rejection of the defendant's
assertion of privileges with respect to police internal affairs documents would preclude
meaningful appellate review,
the circuit court chose to certify the above three questions for
this Court's resolution.See footnote 6
In applying this common law privilege to discovery issues concerning police investigatory files in a civil rights case, the federal district court in Doe v. Hudgins, 175 F.R.D. 511 (N.D. Ill. 1997), adopted the following ten-factor balancing test:
(1) the extent to which disclosure will thwart governmental
processes by discouraging citizens from giving the government
(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 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 from other discovery or from other sources; and
(10) the importance of the information sought to the plaintiff's case.
Id. at 515. This ten-factor test, which was first articulated in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973), is routinely used by courts to resolve discovery issues involving internal police investigations.See footnote 7 7
While this state has never adopted an all-encompassing law enforcement
privilege, we do recognize one limited aspect of the privilege which involves protecting the
confidentiality of informants.See footnote 8
In syllabus point one of State v. Haverty, 165 W.Va. 164, 267
S.E.2d 727 (1980), this Court held that: A common law privilege is accorded the
government against the disclosure of the identity of an informant who has furnished
information concerning violations of law to officers charged with the enforcement of the law.
However, disclosure may be required where the defendant's case could be jeopardized by
nondisclosure. In State v. Tamez, 169 W.Va. 382, 290 S.E.2d 14 (1982), we set forth the
procedures to be followed in a hearing on the issue of disclosing the identity of a confidential
informant. Id. at 382-83, 290 S.E.2d at 15, syl. pt. 3. Those procedures involve an in camera
proceeding to permit the trial court to inspect the written statement submitted by the State
in explanation of why discovery should either be restricted or not permitted in any fashion.
Courts in both California and New York have adopted an official information
privilege, which they apply to information sought in connection with civil rights cases
against state and local law enforcement agencies. See
Kelly v. San Jose, 114 F.R.D. 653
(N.D. Cal. 1987)
King v. Conde, 121 F.R.D. 180 (E.D. N.Y. 1988
). The official
information privilege is not an absolute privilege, however, and application of the ten-factor
Hudgins test, or consideration of comparable interests, is required to determine whether
discovery should nonetheless be permitted. See 175 F.R.D. at 515.
In King, the court crafted
a separate list of factors to balance in applying the official information privilege. Under
this test, the following factors may weigh against disclosure: (1) threat to police officers'
own safety; (2) invasion of police officers' privacy; (3) weakening of law enforcement
programs; (4) chilling of police internal investigative candor; (5) chilling of citizen
complainant candor; and (6) state privacy law. Those factors which may tip the scales in
favor of disclosure are: (1) relevance to the plaintiff's case; (2) importance to the plaintiff's
case; (3) strength of plaintiff's case; and (4) importance to the public interest. 121 F.R.D.
In discussing the balancing of the non-exclusive Hudgins factors , the court in Kelly determined that the privilege should be moderately pre-weighted in favor of disclosure. 114 F.R.D. at 661. In support of its leaning towards disclosure, the court opined that
the public interests in the categories favoring disclosure (e.g. the policies underlying our civil rights laws, public confidence in the court system, and doing justice in individual cases) clearly outweigh the public interests in favor of secrecy (e.g., not compromising procedures for self-discipline within police forces or the privacy rights of officers or citizen complainants).
Id.; see also King, 121 F.R.D. at 195 (stating that
[t]he great weight of the policy in favor
of discovery in civil rights actions supplements the normal presumption in favor of broad
discovery and that these powerful public policies suggest that the defendants' case for
restricted disclosure must be extremely persuasive)
Suggesting that there has been
substantial exaggeration of the size of the harm that limited disclosure might do to
concededly legitimate law enforcement interests, the court
observed in Kelly
weight of some of the interests in the law enforcement category may be reduced because
courts routinely enter tightly crafted protective orders under which only a single litigant,
sometimes only that litigant's lawyer, has access to the sensitive information. 114 F.R.D.
Henneman v. City of Toledo, 520 N.E.2d 207 (Ohio 1988)
, the Supreme
rt of Ohio was asked to resolve issues analogous to those presented here. After carefully
the competing issues of disclosure versus confidentiality of police records
concluded that the best approach was to require an in camera inspection of the
the court held
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.
Syllabus, Henneman, 520 N.E.2d at 207.
In the instant case, Defendants concede that an
in camera review in order to apply a balancing test would be appropriate.See footnote 9
520 N.E.2d at 210-11 (citations omitted and emphasis supplied).
Defendants, in their attempt to cloak the requested police materials in a shroud
of confidentiality, have likewise suggested that provisions of this state's FOIA provide the
necessary underpinnings for applying a privilege to law enforcement investigatory records.
Specifically, Defendants look to West Virginia Code §
29B-1-4(4), which exempts from
disclosure under FOIA, [r]ecords of law enforcement agencies that deal with the detection
and investigation of crime and internal records and notations of such law enforcement agency
which are maintained for internal use in matters relating to law enforcement.
Acknowledging that West Virginia has not applied this FOIA provision to the civil discovery
process, Defendants maintain that other courts have at least looked to such provisions as
guidelines in balancing public policy concerns against the vital and important needs of
litigants in the discovery process. Hudgins, 175 F.R.D. at 514. Critically, however, the
court in Hudgins
ruled that [u]nder Illinois law, the FOIA exemptions are not dispositive
of a discovery request and explained further that FOIA does not create an evidentiary
privilege because the statute concerns disclosure to the public generally, not disclosure to a
specific litigant in response to discovery in litigation. 175 F.R.D. at 514;
see also Martin
v. Lamb, 122 F.R.D. 143, 146 (W.D. N.Y. 1988) (holding that statutory provision making
police personnel records confidential did not create an evidentiary privilege: Merely
asserting that a state statute declares that the records in question are 'confidential' does not
make a sufficient claim that the records are 'privileged' within the meaning of Fed. R. Civ.
P. 26(b)(1) and Fed. R. Evid. 501.); Charles A. Wright and Kenneth W. Graham, Jr.,
Federal Practice and Procedure § 5437 n.15 (1980) (explaining that statutes providing for
confidentiality are concerned with extrajudicial disclosures; privilege is concerned with
disclosure in court).
Both state and federal courts have ruled that FOIA provisions do not govern
civil discovery matters. See Kerr v. United States District Court, 511 F.2d 192, 197 (9th Cir.
1975) (holding that the exceptions to the disclosure in the Act [FOIA] were not intended to
create evidentiary privileges for civil discovery), aff'd, 426 U.S. 394 (1976); Pleasant Hill
Bank v. United States, 58 F.R.D. 97, 99 (W.D. Mo. 1973) (rejecting as unsound
assumption that information exempt from disclosure to the general public under the Act
[FOIA], by that fact alone, is 'privileged' within the meaning of F.R.Civ.P. 26(b)(1) and thus
not discoverable by a civil litigant); Douglas v. Windham Superior Court, 597 A.2d 774,
776 n.2 (Vt. 1991)
(stating that exception deals with disclosure to the public generally, not
disclosure in response to discovery in litigation). Logic suggests that FOIA provisions
which address the confidentiality of records and their availability to the general public are
aimed at protecting interests distinct from those at issue when records are requested in
conjunction with a civil rights action. See, e.g., King, 121 F.R.D. at 191 (observing that
[m]ost information requested by civil rights plaintiffs in these lawsuits deals with
professional personnel records such as prior involvement in disciplinary proceedings or
citizen complaints filed against the officers and stating that [t]he privacy interest in this
kind of professional record is not substantial because it is not the kind of 'highly personal'
information warranting constitutional safeguard); see also Denver Policemen's Protective
Ass'n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981) (determining that police personnel
files and internal investigation files were not protected from disclosure based on privacy
grounds where documents related simply to the officers' work as police officers)
Emphasizing that the information they seek involves oversight and review of
an officer's allegedly wrongful behavior and not information relative to the investigation or
detection of a crime, Plaintiffs contend that the information requested falls outside the
investigatory records portion of the FOIA exception.
See W.Va. Code § 29B-1-4(4); Syl. Pt.
11, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985) (holding that investigatory
records portion of FOIA does not include information generated pursuant to routine
or oversight, but is limited to information compiled as part of an inquiry into
specific suspected violations of the law). Plaintiffs further contend that the FOIA provision,
which exempts from disclosure internal records and notations . . . which are maintained for
internal use relating to law enforcement, does not apply to the information requested based
on this Court's holding in Hechler
that this language refers to confidential investigative
techniques and procedures. W.Va. Code § 29B-1-4(4)
; Syl. pt. 12, in part, 175 W.Va. at
437, 333 S.E.2d at 802.
Given our conclusion that FOIA provisions are not controlling with regard to
matters of confidentiality raised in the course of civil discovery, we need not delve into the
intricacies of whether the document request falls within the parameters of the FOIA
provisions. Like the Ohio Supreme Court in Henneman, we hold that the provisions of this
state's FOIA, which address confidentiality as to the public generally,
were not intended to
shield law enforcement investigatory materials from a legitimate discovery request when
such information is otherwise subject to discovery in the course of civil proceedings.See footnote 10
the same reasons already discussed, we discount the applicability of several regulatory
enactments relied upon by Defendants as supplemental support for this argument. See 81
W.Va.C.S.R. § 10-6.3 (stating that [a]ll documents concerning complaints alleging
employee [as against State troopers] misconduct shall be considered confidential); 81
W.Va.C.S.R. § 10-3.3 (stating that [t]he Superintendent shall ensure the confidentiality of
all documents and reports relating to the investigation of any complaint through strict control
of files both within and outside the Unit's offices
After thoroughly considering the arguments relative to the establishment of a
privilege that would protect law enforcement investigatory materials from disclosure, we find
no compelling need for the establishment of such a privilege. See Douglas, 597 A.2d at 777
(recognizing that privileges are strongly disfavored [b]ecause of their interference with
truthseeking); see also U.S. v. Nixon, 418 U.S. 683, 710 (1974) (stating that these
exceptions to the demand for every man's evidence are not lightly created nor expansively
construed, for they are in derogation of the search for truth); Wood v. Breier, 54 F.R.D. 7,
13 (E.D. Wis. 1972) (denying motion for protective order concerning police investigation
into alleged assault of civilian and stating that danger of doing harm to the Milwaukee
Police Department by allowing discovery of this file is not nearly so great as the harm that
would surely result to the efficacy of our entire legal structure . . . if a case such as this were
won because the truth was hidden).
While we are cognizant of the laudatory objectives
underlying a traditional law enforcement investigatory privilege, nothing in the matter before
us suggests any correlation between the materials sought through discovery and the ability
of the state police to effectively conduct either an investigation of the conduct alleged in the
complaint or law enforcement efforts generally. See Morrissey, 171 F.R.D. at 90. Clearly,
the information sought here is limited to either prior instances of police misconduct by
Trooper Jones or to issues related to Plaintiffs' allegations of negligent hiring, training, and
Plaintiffs suggest that there is a paramount public interest which requires
disclosure of the materials sought in actions involving allegations of police misconduct. See,
e.g., Martin A. Schwartz, Admissibility of Investigatory Reports in Section 1983 Civil Rights
Actions--A User's Manual, 79 Marq.L.Rev
. 453, 509 (1996) (observing that the strong
public interest in § 1983 actions generally weighs heavily in favor of a full airing of the
Stressing the need to maintain public confidence in the judicial system
as well as the need to champion civil rights litigation, Plaintiffs contend that these societal
objectives outweigh the privacy interests of the citizens and police officers who provide
information to police investigators. We wholeheartedly agree with Plaintiffs that the
lawfulness of police operations is a matter of great concern to the state's citizenry. And we
similarly concur with the sentiments expressed by the court in Soto v. City of Concord, 162
F.R.D. 603 (N.D. Cal. 1995): [T]he notion that police departments should be able to
completely shield their internal affairs investigatory process from the public offends basic
notions of openness and public confidence in our system of justice. Id. at 612. At the same
we appreciate the concerns raised by Defendants that compelled disclosure
of police investigatory materials might result in fishing expeditions and thereby encourage
frivolous litigation. While these concerns of discovery abuse may be legitimate, we do not
find them insurmountable. The panoply of projected horrors that Defendants forecast,
the adoption of a law enforcement privilege, can be avoided through the use of in camera
inspections and carefully crafted protective orders. Accordingly, we hold that
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 maintaining the confidentiality of such information.See footnote 11
When a lower court is presented with an objection to the production of internal police investigatory materials,See footnote 12 12 the court should utilize factors such as those identified in Hudgins and King, and all other relevant factors, in weighing whether there are convincing reasons to either deny disclosure entirely or to permit disclosure subject to the constraints of a protective order.See footnote 13 13 See 175 F.R.D. at 515; 121 F.R.D. at 191-96. Those courts that have adopted an official information privilege have imposed upon the party opposed to disclosure the burden to make a substantial threshold showing that specific harms are likely to result from the disclosure of the requested materials before the trial court is required to engage in the balancing test to determine whether the materials are privileged. Kelly, 114 F.R.D. at 669, King, 121 F.R.D. at 189. To meet this threshold requirement, the party asserting the privilege must submit a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to and the affidavit must include:
(1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality . . . ; (2) a statement that the official has personally reviewed the material in question; (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests; and (5) a projection of how much harm would be done to the threatened interests if the disclosure were made.
Kelly, 114 F.R.D. at 670.
While we do not go so far as to adopt a law enforcement privilege, we do adopt
the requirement that the party seeking to avoid disclosure of law enforcement documents
must make a substantial threshold showing of harm before the trial court is required to
engage in the balancing test involving the Hudgins and King-type factors. Kelly, 114 F.R.D.
at 669. In so doing, we impose upon
the party challenging discovery the burden of initially
demonstrating to the lower court's satisfaction why disclosure should not be permitted
relative to the specific facts of the case under consideration. The party opposing disclosure
may attempt to meet this burden through use of an affidavit, such as that approved in Kelly,
or by producing other evidence relative to the disclosure issue. Like the court in Kelly, we
agree that a general claim of harm to the 'public interest' is insufficient to overcome the
burden placed on the party seeking to shield material from disclosure. Kelly, 114 F.R.D.
at 672. The objections raised must be sufficiently specific to permit the trial judge to be fully
apprised as to the significance of the disclosure concerns. Accordingly, we hold that before
a circuit court is required to engage in an in camera inspection of records and information
compiled by an internal affairs division of a police department to make a determination
regarding the production of such documents through discovery, the party opposing disclosure
must first make a substantial threshold showing
that specific harms are likely to result from
the disclosure of the requested materials.
Having answered the certified questions, this matter is referred back to the
Circuit Court of Mercer County for further proceedings.
Certified questions answered.