The opinion of the court was delivered by: Joan H. Lefkow United States District Judge
Defendants, the City of Chicago and individual police officers, have moved for entry of a protective order sheltering as confidential personnel records, disciplinary histories, complaint register entries ("CRs"), and similar records of police officers and other Chicago Police Department personnel, as well as non-parties who may become witnesses in the case. They also seek protection of medical records consistently with rules promulgated under the Health Insurance Portability and Accountability Act, codified primarily at 18, 26, & 42 U.S.C. and the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. § 160 et seq., 45 C.F.R. § 164, et seq. The proposed order is not disputed as to the medical records. The parties also seem to agree that particular identifying information such as Social Security numbers and financial information may be treated as confidential. Plaintiffs, however, contend that the personnel and disciplinary materials are not confidential and the proposed order's procedures for lifting the protective order are unduly burdensome, expensive, and inappropriate under Seventh Circuit law. At the heart of this dispute is whether materials relating to citizen complaints against and disciplinary histories of the defendant officers should be treated as confidential matter.*fn1
Rule 26(c) of the Federal Rules of Civil Procedure permits the district court "for good cause, [to] issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." "Absent a protective order, parties to a law suit may disseminate materials obtained during discovery as they see fit." Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994). In deciding whether good cause exists, the district court must balance the interests of the parties, taking into account the harm to the party seeking the protective order and the importance of the disclosure to the nonmoving party. Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D.Ill.1997). When making a good cause determination, a district court may consider "privacy interests, whether the information is important to public health and safety and whether the party benefitting from the confidentiality of the protective order is a public official." Id.
As this court has stated in Bond v. Utreras, No. 04 C 2617, 2007 WL 2003085, at *2 (N.D.Ill. July 2, 2007), rev'd on other grounds, 585 F.3d 1061 (7th Cir. 2009),
"It is implicit in Rule 26(c)'s 'good cause' requirement that ordinarily (in the absence of good cause) a party receiving discovery materials might make them public." Public Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir.1988). Indeed, "[u]nless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event." In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145-46 (2nd Cir.1987). . . . [A]s a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings." Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594, 596 (7th Cir.1979). (footnotes omitted).
The court of appeals more recently has cast doubt on these principles, however, apparently as a result of amendment to Rule 5 of the Federal Rules of Civil Procedure. The rule was amended in 1980 to permit a district court to order that discovery materials not be filed because of "serious problems of storage in some districts." Fed. R. Civ. P. 5, Advisory Committee Notes, 1980 amendment. It retained the default requirement of filing, however, because "such materials are sometimes of interest to those who may have no access to them except by a requirement of filing, such as members of a class, litigants similarly situated, or the public generally." Id. An amendment made in 2000 abrogated the variety of local rules and generally prohibited the filing of discovery materials until they are used in the proceeding. Fed. R. Civ. P. 5(d)(1); see also Advisory Committee Notes, 2000 amendment.
In Bond, 585 F.3d at 1068 n.4, the court stated, "To the extent, however, that [cited] cases are premised upon a principle that pre-trial discovery must take place in . . . public unless compelling reasons exist for denying the public access to the proceedings, they have been superseded by the 2000 amendment to Rule 5 of the Federal Rules of Civil Procedure." (internal citations and quotation marks omitted). Other dicta seem to assume that parties may conduct discovery in private. For example, in Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co.,178 F.3d 943, 944 (7th Cir.1999), the court commented, "It is true that pretrial discovery, unlike the trial itself, is usually conducted in private." See also Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897-98 (7th Cir. 1994) ("[U]ntil admitted into the record, material uncovered during pretrial discovery is ordinarily not within the scope of press access."); Bond, 585 F.3d at 1066 ("Unfiled discovery is private, not public.").
The court has found no cases directly construing Rule 5(d)(1). But the Advisory Committee Notes, cited above, give no indication that the changes in the rule were intended to make private that which had previously been public. While the correct rule of law awaits definition, the court will evaluate good cause for entry and scope of a protective order under the good cause factors set out above but in light of the signals from the court of appeals pointing towards limitation of access to discovery materials.
In their motion, defendants rely solely on Illinois law as grounds for the protective order, seeming to assume that good cause is found in the Illinois Personnel Record Review Act, 820 Ill. Comp. Stat. § 40/0.01, and a recent amendment to the Illinois Freedom of Information Act (IFOIA), codified at Ill. Comp. Stat. § 140/7(1)(n) (West 2010). Only in reply do they address the good cause requirement of Rule 26(c). Of course, Illinois law, while it may be a guide to the nature of the public's interest, is not applicable to discovery in this court. See Murphy v. Schering Corp., 878 F. Supp.124, 126 (N.D.Ill.1995) ("Erie v. Tompkins principles teach that Illinois law provides the substantive rules of decision in this diversity action, but that does not extend to Illinois' procedural rules (see the seminal decision in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)).").
But even if it were applicable, Illinois law does not authorize the scope of confidentiality defendants seek. The Personnel Record Review Act is directed at personnel files only (not CR register documents), and it excludes from its prohibited disclosures disciplinary actions "ordered to a party in a legal action." 820 Ill. Comp. Stat. § 40/7(3)(b). IFOIA exempts from disclosure without consent personal information contained within public records "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," while providing that "[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy." 5 Ill. Comp. Stat. 140/7(1)(c) (West 2010). The Illinois Appellate Court has ruled that IFOIA does not prohibit disclosure of records of citizen complaints against a sheriff's deputy. Gekas v. Williamson, 912 N.E.2d 347, 358, 393 Ill. App.3d 573, 586, 332 Ill. Dec. 161, 172 (2009) ("Complaints, founded or unfounded, that [the deputy] committed misconduct in his capacity as a deputy sheriff are 'information that bears on [his] public duties,'*fn2 and the disclosure of such information 'shall not be considered an invasion of personal privacy.' 5 ILCS 140/7(1)(b).").
A post-Gekas amendment to IFOIA, codified at 5 Ill. Comp. Stat 140/7(1)(n) (West 2010), does not, as defendants argue, materially change the exemption related to disciplinary records so as to justify the protective order requested here. The earlier version of the adjudications exemption applied, as relevant here, to "[i]nformation concerning a public body's adjudication of student or employee grievance or disciplinary cases, except for the final outcome of the cases." 5 Ill. Comp. Stat. § 140/7(1)(u) (West 2009). The amended text, nearly identical, exempts "[r]ecords relating to a public body's adjudication of employee grievance or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed." 5 Ill. Comp. Stat. § 140/7(1)(n) (West 2010). In the first place, employee grievances and discipline is likely related to union and personnel disciplinary procedures. See Our Opinion: Don't weaken revised FOIA, THE STATE JOURNAL-REGISTER, Apr. 27, 2010, http://www.sj-r.com/editorials/x43873749/Our-Opinion-Don-t-weaken-revised-FOIA. In any event, there is no basis to conclude that this amendment, enacted approximately one month after Gekas was decided, was an effort to broaden the scope of the adjudication exemption for public employees, and certainly not to exempt CR register documents. See Fuller v. City of Chicago, No. 09 C 1672, Minute Order, 2009 U.S. Dist. LEXIS 125727 at *2 (N.D. Ill. Nov. 20, 2009) ("[The] amendments do not materially change the provision regarding disciplinary proceedings that was in effect at the time of the Gekas ruling."); but see Alva v. City of Chicago, No. 08 C 6261, Slip. Op. (N.D. Ill. Apr. 16, 2010) (after 2010 amendment, CR reports are exempt from disclosure under IFOIA justifying protective order designating them as confidential); Bell v. City of Chicago, No. 09 C 0754, 2010 WL 753297 (N.D. Ill. Feb. 26, 2010) ("This amendment is material, because the City no longer needs to argue that a CR is a personal and private part of an officer's personnel file to fit within the FOIA's exemptions"). Quite to the contrary, according to an article in the STATE JOURNAL-REGISTER, the amendments, which were proposed by Attorney General Lisa Madigan's office, were intended to remove loopholes that had been exploited by government officials.*fn3
Returning to the real issue, whether defendants have demonstrated good cause for confidentiality of CR files, the court concludes that good cause is apparent only for private information appearing in the documents.
Private information. The officers as well as complainants in CR files have a privacy interest in the contents of their personnel files and CR register documents that do not relate to their official duties. The information is presumably irrelevant to any matter before the court, in any event. The definition of private information in IFOIA, 5 Ill. ...