U.S. v. O'Neill

• Decision Date: 13 March 1980
• Docket Number: No. 79-1665,79-1665
• Citation: 619 F.2d 222
• Parties: 6 Fed. R. Evid. Serv. 643 UNITED STATES of America, Appellant, v. Joseph F. O'NEILL and Frank A. Scafidi, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 222

619 F.2d 222

6 Fed. R. Evid. Serv. 643

UNITED STATES of America, Appellant, v. Joseph F. O'NEILL and Frank A. Scafidi, Appellees.

No. 79-1665.

United States Court of Appeals Third Circuit.

Argued December 11, 1979.

Decided March 13, 1980.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Division, Theodore A. McKee (Argued), Asst. U. S. Atty., Philadelphia, Pa., for appellant.

Sheldon L. Albert, City Sol., James M. Penny, Jr., Deputy City Sol., Ralph J. Teti (Argued), Asst. City Sol., Philadelphia, Pa., for appellees.

Before ROSENN, MARIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

The United States has appealed from the district court's denial of the Government's motion for enforcement of administrative subpoenas issued by the United States Civil Rights Commission upon Joseph O'Neill, then Commissioner of the Philadelphia Police Department, and Frank A. Scafidi, then Chief Inspector, Internal Affairs Bureau of the Philadelphia Police Department. The portions of the subpoenas at issue here requested the production of documents and records by the City of Philadelphia relating to investigations into reports of alleged brutality on the part of named police officers. The district court denied enforcement of the subpoenas on the basis of executive or "governmental" privilege.

II. Facts

On February 6, 1979, the United States Commission on Civil Rights (the "Commission") began a series of public hearings in Philadelphia as part of the Commission's ongoing inquiry concerning denials of equal protection of the law under the Constitution and in the administration of justice. The hearings were part of a broader national inquiry by the Commission into the possible need to revise federal legislation to deal more effectively with the problem of police abuse. The Commission was created by Congress in 1957 and empowered to investigate, study, and collect information concerning denials of constitutional rights and equal administration of justice. Civil Rights Act of 1957, Pub.L.No.85-315, 71 Stat. 634. The Commission has the authority to hold hearings and issue subpoenas for the attendance of witnesses and for the production of written material. 42 U.S.C. § 1975d(f). If any person refuses to obey the subpoenas, the Commission may apply to a United States district court for an enforcement order. 42 U.S.C. § 1975d(g).

Prior to the scheduled February 6 hearings in Philadelphia, the Commission served subpoenas upon Police Commissioner O'Neill and Chief Inspector Scafidi. The subpoenas called for the production of extensive documents relating to training, investigation and discipline in the Philadelphia Police Department. O'Neill and Scafidi supplied most of the requested material but refused to comply with Paragraph IV of the O'Neill subpoena and Paragraphs 1 through 7 of the Scafidi subpoena calling for the production of material on the Police Department's response to allegations of police brutality on the part of thirty-one named officers. Paragraph IV of the O'Neill subpoena requested, inter alia:

All records, documents, reports, notes, of any description whatsoever from any source pertaining to the investigation by the Homicide Division, the Internal Affairs Bureau, or any other part of the Philadelphia Police Department into any actions which resulted in allegations of excessive, inappropriate, deadly or illegal use of force by the following current or former police officers listed on pages 3 and 4.

The section of the Scafidi subpoena to which the City objected corresponded to Paragraph IV of the O'Neill subpoena.

Following the City's refusal to supply the requested information, the Government filed a motion to enforce the subpoena pursuant to 42 U.S.C. § 1975d(g) giving the district courts jurisdiction to require the production of "pertinent, relevant and non-privileged" subpoenaed material. Following several conferences with the district court at which some additional material was produced by the City, the Government's motion to enforce was argued on February 16, 1979. ¹ The court denied the motion to enforce in an opinion delivered from the bench. The Government's subsequent motion to reconsider was also denied.

III. Manner of Assertion of Privilege

The City's refusal to comply with paragraph 4 of the subpoena was asserted orally by the City Solicitor when he appeared together with and on behalf of Commissioner O'Neill and Inspector Scafidi at the Commission's executive session on February 6, 1979, the date listed in the subpoena for compliance. At that time the City claimed compliance would violate the officers' fifth amendment privilege against self-incrimination, the attorney-client and work product privileges, and the police officers' due process rights, and that the nature of much of the material sought would tend to degrade and defame individual officers.

The City also claimed in oral argument before the district court that the police officers named in the subpoena were the subject of 13 criminal actions, 30 civil actions, and potential future indictments stemming from federal and state grand jury investigations. The City claimed that release of the subpoenaed information would "materially interfere with the City's ability to properly defend outstanding lawsuits versus the City and versus the individual officers." The defense of "governmental" privilege was alluded to in the City's legal memorandum submitted to the district court. When pressed on the point during oral argument the City Solicitor stated that he would "claim executive privilege, too . . . ."

We find unsatisfactory the manner in which the City has asserted its claim of privilege. In the first place, it was invoked orally, although there was ample opportunity to prepare a written formal claim of privilege. In the second place, it was not invoked by the department head, but by the attorney for the City. There was no affidavit, and no indication that the privilege was being invoked by the responsible public official on the representation that he had personally examined the documents and determined nondisclosure was required. In the third place, it was a broadside invocation of privilege, which failed to designate with particularity the specific documents or file to which the claim of privilege applied.

When a request for relevant documents or information is made, a claim of privilege should be interposed judiciously and not casually. Under ordinary circumstances, objection to production of documents on the ground of privilege should be made in writing. The same rationale for requiring that a party objecting to a request for production of documents under Fed.R.Civ.P. 34(b) must submit a written response specifying the objection to each category applies equally to the response to a subpoena duces tecum. This gives each party the opportunity to analyze the request and the corresponding objection, and gives the court a fuller record on which to base its ruling. It also provides some assurance that the party asserting the privilege has directed his or her attention to the scope of the claim being asserted.

The appropriate manner in which privilege should be invoked was set forth by the Supreme Court in United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953), where the Court said:

There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for a claim of privilege . . . .

Although the Court in that case was dealing with the claim of privilege for state and military secrets, "its prerequisites for formal invocation of the privilege have been uniformly applied irrespective of the particular kind of executive claim advanced." Carter v. Carlson, 56 F.R.D. 9, 10 (D.D.C.1972).

In Smith v. Federal Trade Commission, 403 F.Supp. 1000 (D.Del.1975), Judge Schwartz held that the FTC improperly invoked executive privilege with respect to certain documents, noting that to support a claim of executive privilege at least three requirements must be satisfied. The head of the agency claiming the privilege must personally review the material, there must be " 'a specific designation and description of the documents' claimed to be privileged," and there must be "precise and certain reasons for preserving" the confidentiality of the communications. Usually such claims must be raised by affidavit. Id. at 1016; see also Black v. Sheraton Corp. of America, 184 U.S.App.D.C. 46, 57-58, 564 F.2d 531, 542-43 (D.C.Cir.1977); Pierson v. United States, 428 F.Supp. 384, 392-96 (D.Del.1977); Center on Corporate Responsibility, Inc. v. Schultz, 368 F.Supp. 863, 872-73 (D.D.C.1973) (claim of executive privilege involving Nixon tape rejected because not invoked personally by President who had custody of allegedly privileged matters).

The City contends that the privilege was properly invoked in this case because Commissioner O'Neill and Inspector Scafidi accompanied the City Solicitor when the City Solicitor invoked the privilege on their behalf before the Commission. Although the City Solicitor's legal opinion is binding on the department head, Philadelphia Home Rule Charter 4-400, this does not operate to substitute the City Solicitor's legal judgment for the departmental responsibility of the city official. It has been suggested that it is inappropriate for the privilege to be invoked by attorneys instead of by the department head. See Thill Securities Corp. v. New York Stock Exchange, 57 F.R.D. 133, 138 (E.D.Wis.1972); Carter v. Carlson, 56 F.R.D. at 11; but see Frankenhauser v. Rizzo, 59 F.R.D. 339, 342 n.6 (E.D.Pa.1973). We need not decide if this is always the case, but there was no indication here that the department heads made the type of personal careful examination which...