The Virginia Coalition for Open Government - Coward v. City of Richmond

This matter is before the court on Motion to Quash Subpoena Duces Tecum and/or for Protective Order filed by the City of Richmond and the Chief of Police (hereafter the City). Having considered the arguments, memoranda and motions of counsel, the Court overrules the motion. The Court's findings follow.

Factual and Procedural History

Plaintiff filed a five-count complaint against the City of Richmond and four members of the Richmond Police Department in October of 1995. Subsequently, in January of 1996, Plaintiff filed a second suit against Deputy Police Chief Frederick Russell alleging substantially the same facts. This second suit has since been dismissed.

Plaintiff claims that a coworker detective assaulted and battered her on five separate occasions between March and July, 1995. At the time of the alleged incidents, Plaintiff was employed by the City of Richmond Police Department as a police detective. After each incident, Plaintiff allegedly complained to her superiors.

Following the latest complaint by Plaintiff in July of 1995, an internal investigation of the complaints was conducted by the Department. The Department interviewed all officers and civilian employees in the detective division. The Department, in all, conducted sixty-one interviews. Following the interviews, the investigators made written conclusions and findings and reported to their superiors.

Plaintiff filed a request for Subpoena Duces Tecum of the Chief of Police. The Subpoena sought production of the documents generated as a result of the internal investigation. The City and the Police Chief have moved to quash this Subpoena Duces Tecum.

Analysis

To support the Motion to Quash, movants argue that the materials sought by Plaintiff are privileged. To reach this conclusion, they draw analogies to other areas of the law.

First, the City argues that Police Investigative Files are considered confidential under the Freedom of Information Act (FOIA). Acknowledging that the Plaintiff's Subpoena Duces Tecum is not a matter within the province of the FOIA, the City nonetheless argues that the public policy underlying that statute should be controlling here. The public policy in question is centered around encouraging participation in police investigations. The FOIA keeps criminal investigatory files confidential in order not to stifle the likelihood that witnesses will provide accurate and complete statements to the police. In response, Plaintiff points out that the information was not gathered during a criminal investigation. Further, Plaintiff argues, the FOIA does allow disclosure of criminal incident information once the danger to an ongoing investigation is passed.

Second, the City addresses the criminal discovery rules. Again, it points to the public policy underlying the prohibition on discovery. Police notes and statements by witnesses arising from a criminal investigation have been held to be confidential. Bellfield v. Commonwealth, 215 Va. 303 (1974). It is argued that this holding is based on the public policy of ensuring that citizens will not be hesitant to speak to the police and report important information concerning matters under investigation. The other cases cited by the City are similar in holding and reasoning. See, e.g., Hackman v. Commonwealth, 220 Va. 710 (1980); Currie v. Commonwealth, 10 Va. App. 204 (1990). Each of these cases, however, involved a criminal investigation and statements made by citizen witnesses. The City argues that since the allegation here could have led to criminal charges, the materials produced in this investigation should be likewise privileged. Again, Plaintiff points out that this was not a criminal investigation or prosecution of a case. As such, Plaintiff contends, the privilege does not apply.

The final ground on which the City challenges the Subpoena Duces Tecum is the claimed availability of other sources through which Plaintiff can obtain the same information. Specifically, it claims that the Plaintiff could interview that same sixty-one people, thereby making the need for this discovery moot. The Plaintiff counters by arguing that as this a Subpoena Duces Tecum of a non-party, not a Request for Production of a Party, Plaintiff need not rely on other sources for the information. Plaintiff does not concede that the information could be easily obtained from other sources, but maintains that this is not the standard for this type of discovery.

The movants bear the burden of showing that the court should sustain their motion. They have failed to do so. No authority is cited which establishes that there is a privilege preventing the disclosure of these documents. The law cited is applicable to this case only, if at all, through public policy concerns and analogy.

The public policy, ensuring the confidentiality of a police criminal investigation, is a laudable goal, but is not affected by this case. This was not a criminal investigation. It was simply an employer conducting an internal investigation concerning the complaints of one employee about the behavior of another employee. Under these circumstances, the fact that the employer is the police department does not create a privilege against discovery.

For the reasons outlined above, the Motion to Quash is overruled. Defendants' objections are noted.

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