Maclay v. Jones

• Decision Date: 01 December 2000
• Docket Number: No. 27776.,27776.
• Citation: 208 W.Va. 569,542 S.E.2d 83
• Parties: Donald MACLAY and Karen Maclay, Plaintiffs, v. Robert C. JONES, individually and in his official capacity as a West Virginia State Trooper; John Morrison, John Alexander, John Bragg and Trooper X, an unknown trooper, in their official capacities as members of the West Virginia State Police, and the West Virginia State Police, Defendants.
• Court: West Virginia Supreme Court

542 S.E.2d 83

208 W.Va. 569

Donald MACLAY and Karen Maclay, Plaintiffs, v. Robert C. JONES, individually and in his official capacity as a West Virginia State Trooper; John Morrison, John Alexander, John Bragg and Trooper X, an unknown trooper, in their official capacities as members of the West Virginia State Police, and the West Virginia State Police, Defendants.

No. 27776.

Supreme Court of Appeals of West Virginia.

Submitted October 24, 2000.

Decided December 1, 2000.

Mary Ellen Griffith, Bell & Griffith, Princeton, for Plaintiffs.

Ancil G. Ramey, Jeffrey K. Phillips, Steptoe & Johnson, Charleston, for Defendants.

SCOTT, Justice:

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 personal 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.¹

I. Factual and Procedural Background

Ms. Karen Maclay is the former wife of Trooper Ronald C. Jones. She alleges that, following a complaint she and her husband Donald Maclay made to the West Virginia State Police (" State Police") in the Spring of 1998 concerning harassment by Trooper Jones, Mr. Maclay was arrested for illegally registering to vote. During the interrogation following the arrest, Mr Maclay alleges that he was physically assaulted by an unknown Trooper. The Maclays (hereinafter "Plaintiffs") filed the underlying civil action against Trooper Jones and the State Police² on May 12, 1999, asserting claims of denial of due process, cruel and unusual punishment, assault, battery, conspiracy, intentional infliction of emotional distress, and negligent supervision.

In response to a notice of deposition³ and subpoena duces tecum,⁴ through which Plaintiffs requested records relative to the internal affairs investigation of complaints filed against Trooper Jones as well as the trooper's personnel file,⁵ Defendants filed a motion seeking a protective order. Treating the motion as a partial summary judgment ruling, the lower court 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.⁶

II. Discussion

Defendants suggest that this Court should adopt an evidentiary privilege, which would govern the disclosure of the requested police materials. As support for their theory that the items requested through discovery are privileged, Defendants cite both federal common law as well as statutory and regulatory provisions pertinent to this state's Freedom of Information Act ("FOIA"), West Virginia Code §§ 29B-1-1 to -7 (1998).

A. Common Law Privilege

Turning first to the issue of whether a common law privilege exists, Defendants acknowledge that West Virginia is not among the group of states that have chosen to recognize a qualified privilege for law enforcement investigatory materials. See, e.g., In re Marriage of Daniels, 240 Ill.App.3d 314, 180 Ill.Dec. 742, 607 N.E.2d 1255, 1265 (1992) (recognizing a limited privilege for law enforcement investigatory information and acknowledging that a "`qualified common law privilege ... exists to prevent "the harm to law enforcement efforts which might arise from public disclosure of ... investigatory files"'") (quoting Raphael v. Aetna Cas. & Surety Co., 744 F.Supp. 71, 74 (S.D.N.Y. 1990)); see also Morrissey v. City of New York, 171 F.R.D. 85, 90 (S.D.N.Y.1997) (discussing how "focus of the law enforcement privilege is to protect information relating to investigations" and observing that this type of privilege is aimed at the "ability of the police department to conduct effective law enforcement, presently and in the future....").

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 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 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.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.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. Id.

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. at 191-96.

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...