United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
D. JOHNSTON U.S. MAGISTRATE JUDGE
the Dead Collector in “Monty Python and the Holy
Grail” whacking the Dead Body That Claims It Isn't,
this order hopefully puts the self-critical analysis
privilege to rest in the context of Illinois law enforcement
internal investigations. In fact, the self-critical analysis
privilege has been moribund since the Supreme Court's
decision in University of Pennsylvania v. Equal
Employment Opportunity Commission, 493 U.S. 182 (1990).
Court refuses to recognize the self-critical analysis
privilege. Even if this Court were to recognize that
privilege, the Court finds that the privilege would not apply
under the facts presented here.
complaint contains the following allegations. A local
business called Rockford Scanners maintains a website that
blogs about, among other things, crime occurring in Rockford,
Illinois. See www.rockfordscanner.com (last visited
Nov. 29, 2017). As of January 2016, millions had visited the
website, which had over 100, 000 followers. Sometimes,
Rockford Scanner contributors arrive at crime scenes before
official first responders. According to the complaint, the
goal is to post citizens' first-hand reports of their
observations to inform the community. In theory, this would
allow the community to better combat crime in
complaint relates to the following incident
(“Incident”). On May 25, 2015, Plaintiff was a
freelance contributor for Rockford Scanner. That night, while
in the Midtown District, Plaintiff was on a motor powered
bicycle when he witnessed what he thought was police
activity. In the age of the ubiquitous cell phone, Plaintiff
began recording the events. At that time, two officers
approached him, told him to leave, and threatened him with
arrest. Plaintiff claims that as he was leaving “he
said goodbye to some of the officers.” He was then
arrested despite committing no crime. Plaintiff claims he was
charged with obstructing a peace officer, improper lane
usage, operating an uninsured vehicle, and aggravated driving
while license revoked. According to the complaint, two
officers ordered that Plaintiff's cell phone be seized.
But Plaintiff claimed he was arrested for merely recording
and documenting the police activity occurring on a public
street. Plaintiff also alleges that in retaliation the
officers falsely informed media outlets that Plaintiff was
arrested as part of a prostitution sting and provided his
name and booking photo to the media. The Winnebago County
State's Attorney's Office subsequently dismissed all
charges against Plaintiff.
result of the Incident, based on these allegations, Plaintiff
filed an eleven-count complaint pursuant to 42 U.S.C.
§1983, containing claims based upon, among other things,
the First and Fourth Amendments. The complaint names the City
of Rockford (“City”) and three officers as
defendants (“Defendant officers”).
Relating to Discovery Dispute
March 31, 2016, Plaintiff filed a citizen complaint with the
Rockford Police Department (“RPD”) because of the
Incident. The citizen complaint was made under oath and
penalty of perjury. Dkt. #22-1.
a lieutenant, the RPD conducted what appears to be a thorough
investigation of the Incident. The investigation resulted in
a comprehensive eighty-eight-page report
(“Report”). The Report was generated pursuant to
RPD General Order 10.03. The General Order notes the dual
purposes of internal investigations - to provide for
discipline when officers violate policy as well as to clear
officers when the complaint is unwarranted. Dkt. #32, p. 3
(“Investigations will be performed in a manner that
will assure the community of prompt corrective action when
Department members conduct themselves improperly and to
protect the Rockford Police Department and its' [sic]
members from unwarranted criticism pursuant to the discharge
of their official duties.”). The General Order makes no
reference to any recommendations regarding discipline if a
complaint is sustained. The investigation merely requires a
determination of findings, stating whether the complaint is
classified as “sustained, ” “not sustained,
” “exonerated, ” or
“unfounded.” Dkt. #32, p. 12.
Report also sheds more light on the Incident. At the time of
the Incident, the RPD was conducting a prostitution sting.
During this operation, two female officers were feigning to
be prostitutes and approached individuals to determine if
they would exchange money for sexual relations. Plaintiff
rode his motorized bicycle to the area, and was recording
some of the interactions with his cell phone, including
photographing at least one of the female officers. The Report
contains an allegation that at least one of the officers on
the scene believed that Plaintiff was notifying potential
“johns” of the sting. One of the Defendant
officers approached Plaintiff and told him that he needed to
move from the area because Plaintiff was impeding an
investigation. (This officer obviously knew Plaintiff because
he referred to Plaintiff by his first name when ordering him
to leave the area.) Plaintiff asked how far he needed to
move. Eventually, Plaintiff was told he needed to be six
blocks away. As he was leaving on his motorized bicycle,
Plaintiff yelled “Good night, officers!” The
officers believed that by doing so Plaintiff was informing
potential “johns” that the two females were, in
fact, police officers. Plaintiff was then stopped, arrested
and had his cell phone seized.
the Report was completed, on June 17, 2016, Plaintiff
received a letter from RPD Chief of Police Dan O'Shea
indicating that some of Plaintiff's complaints against
the Defendant officers were sustained. Critically, the letter
contains the following paragraph:
The Office of Professional Standards performed an
investigation into your allegations against these officers. I
have reviewed the investigative report, all documentation
related to this event, and I wish to inform you the evidence
supported your allegations against Sergeant Eddie Torrance,
Officer Timothy Campbell and Officer Sean Welsh [Defendant
to the City, these types of letters are sent to complainants,
informing them of the outcomes of the investigations. Dkt.
#29-1, p. 2; Dkt. #32, p. 11. It is undisputed that the
Defendant officers were disciplined as a result of the
Report contains not only factual findings, but also
conclusions as to whether the Defendant officers violated RPD
policies. The City contends that “investigative reports
prepared in conjunction with internal investigations of
complaints of misconduct against police officers are . . .
relied upon by the Chief of Police in determining whether
allegations of misconduct against officers are sustained or
not sustained.” Dkt. #29-1, p. 2. But, like the General
Order requiring the Report, the Report itself contains no
recommendations as to discipline; it is silent in this
City produced to Plaintiff's counsel a redacted copy of
the Report. The City redacted certain aspects of the Report,
mostly the lieutenant's analysis and conclusions as to
whether policy was violated. The City asserted the redacted
portions are privileged under the self-critical analysis
privilege. The City and Defendant officers have not
objected based on relevance. In fact, under Federal Rule of
Civil Procedure 26, there is no doubt that the entire Report
is relevant. Whether the Report or portions of it are
admissible is not before this Court.
filed a motion to compel (“Motion”) the
production of the entire un-redacted Report. Dkt. #22. The
City and Defendant officers responded and also provided the
Court with an un-redacted copy of the Report to review in
camera. Dkt. #24. Thereafter, the Court held a hearing
on the Motion to focus on certain aspects of the dispute.
Following the hearing, the parties filed supplemental briefs,
with the City providing an affidavit in further support of
its position. Dkt. #29, 32. The issue is now fully briefed
and ripe for ruling.
important to carefully articulate the issue in this case. The
issue is whether the rationales and thought processes
relating to the ultimate determination of whether RPD policy
was violated, which are contained in a police
department's office of professional standards internal
investigative report, are protected by the self-critical
analysis privilege. The City wisely does not assert the
self-critical analysis privilege applies to the factual
provisions of the Report or the ultimate conclusion as to
whether the Defendant officers violated RPD policy.
Principles What Is The Self-Critical
self-critical analysis privilege protects internal and
confidential performance evaluations, internal investigations
records, and other documents containing an organization's
self-critical analyses. Dorato v. Smith, 163
F.Supp.3d 837, 891 (D. N.M. 2015). The rationale for the
privilege is that disclosing these documents will deter or
suppress socially useful investigations and evaluations or
compliance with the law or with professional standards.
Id. The concern is that absent this type of
privilege individuals and organizations will not candidly
evaluate their compliance with regulatory or legal
requirements out of fear of creating evidence that may be
used against them in the future. Craig v. Rite Aid
Corp., No. 08 CV 2317, 2010 U.S. Dist. LEXIS 137773, *15
(M.D. Pa. Dec. 29, 2010).
Defendants Bear The Burden On This Motion To Compel.
burden issue in this case is straight-forward. The City is
asserting a privilege that it claims protects portions of the
Report from disclosure. When a party asserts an evidentiary
privilege, the burden falls on that party. United States
v. Hamilton, 19 F.3d 350, 354 (7th Cir. 1994) (marital
privilege); see also Shaffer v. American Medical
Association, 662 F.3d 439, 446 (7th Cir. 2011)
to recognize a privilege is a mixed question of law and fact.
Adkins v. Christie, 488 F.3d 1324, 1327 (11th Cir.
2007); Virmani v. Novant Health, Inc., 259 F.3d 284,
286-87 (4th Cir. 2001); Carman v. McDonnell Douglas
Corp., 114 F.3d 790, 793 n.2 (8th Cir. 1997). And
driving the question of law is the general presumption
against recognizing a privilege. Jenkins v. DeKalb
County, 242 F.R.D. 652, 656 (N.D.Ga. 2007) (“there
is a presumption against creating new privileges”).
Privileges are distinctly exceptional and not lightly created
because they are a derogation of the search for the truth.
United States v. Nixon, 418 U.S. 683, 710 (1974);
United States v. Bryan, 339 U.S. 323, 331 (1950).
Indeed, at least two circuits require a
“compelling” justification to recognize a
privilege. Pearson v. Miller, 211 F.3d 57, 67 (3d
Cir. 2000) (“only the most compelling candidates”
are recognized); In re International Horizons, Inc.,
689 F.2d 996, 1004 (11th Cir. 1982). A party “seeking
judicial recognition of new evidentiary privileges must
demonstrate with a high degree of clarity and certainty that
the proposed privilege will effectively advance a public
good.” In re Sealed Case, 148 F.3d 1073, 1076
(D.C. Cir. 1998). Alternatively, as one court more bluntly
stated, “[f]ederal courts are loath to recognize new
privileges.” Lalumera v. 2491 Corp., No.
12-929, 2012 U.S. Dist. LEXIS 121254, *3 (E.D. Pa. Aug. 12,
2012). None of this should be surprising. By their very
nature, privileges conflict with the search for the truth.
See United States v. Evans, 113 F.3d 1457, 1461 (7th
Cir. 1997). And, after all, courts are in the business of
searching for the truth.
Law Applies, But Illinois Law Is Not Ignored.
City and Defendant officers correctly assert, because the
rule of decision in this case is governed by federal law,
Federal Rule of Evidence 501 requires this Court to apply
federal common law. Northwestern Memorial Hospital v.
Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004). Rule 501
provides the following:
The common law - as interpreted by United States courts in
the light of reason and experience - governs a claim of
privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a
claim or defense for which state law supplies ...