ANTHONY P. PATTI, Magistrate Judge.
Plaintiffs filed the instant motion to compel on July 26, 2016, seeking a Court order requiring that Defendants do the following: 1) produce Sergeant Rebecca McKay for deposition; 2) produce Sergeant Bernadette Dunbeck for deposition; 3) supply the last known address of retired officer Derek Hassan; and
4) turn over an unredacted copy of Sergeant Bernadette Dunbeck's police report ("the Dunbeck report"). (DE 34.) On August 25, 2016, this matter came before me for a hearing, during which I made the following rulings: 1) that Defendants' counsel must either certify that he is entitled to accept subpoenas on behalf of Officer Hassan or provide Officer Hassan's contact information to Plaintiffs' counsel on or before September 1, 2016; 2) that Defendants must produce Sergeant McKay for deposition after the conclusion of the state court criminal proceeding; 3) that Officer Hassan's deposition must take place on the same day as Sergeant McKay's, the order to be determined by Plaintiffs; and 4) that Defendants are entitled to depose Plaintiff Fawaz at some point after Sergeant McKay's deposition. (See DE 55.)
Thus, the only remaining issue was whether Defendants were required to turn over to Plaintiffs an unredacted copy of the Dunbeck report, with Dunbeck's deposition delayed until the issue could be decided. Finding the briefing on this question inadequate, I ordered that each party submit supplemental briefing on the issue of the deliberative process and law enforcement privileges as they related to internal police investigative reports. Defendants were also required to provide a redacted and unredacted copy of the report for an in camera review. Both parties timely submitted the required briefing, and Defendants provided the documents necessary for an in camera review. (DE 56 and 57.)
The Dunbeck report is a 58-page internal affairs summary of the results of an investigation into the conduct of Detroit Police Sergeant Rebecca McKay, initiated when Plaintiff Fawaz made a complaint about her. (See DE 38-5 at 2-59 (Redacted Dunbeck Report)).
The deliberative process privilege protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1974). "The primary purpose served by the deliberative process privilege is to encourage candid communications between subordinates and superiors." Schell v. U.S. Dep't of Health & Human Servs., 843 F.2d 933, 939 (6th Cir. 1988). "The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance `the quality of agency decisions' . . . by protecting open and frank discussion among those who make them within the government." Dep't of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 9 (2001).
The privilege, however, is not absolute and is narrowly construed. Gen. Motors Corp. v. United States, No. 07-14464, 2009 WL 5171807, at *1 (E.D. Mich. Dec. 23, 2009) (Roberts, J.). Here, I am informed by an oft-cited decision which reflects upon "sources of confusion in analysis of assertions of privilege by law enforcement agencies," in part, as follows:
Kelly v. City of San Jose, 114 F.R.D. 653, 658-59 (N.D. Cal. 1987) (Brazil, M.J.) (emphases in original). In addition, as described more recently by our Court of Appeals:
Rugiero v. Dep't of Justice, 257 F.3d 534, 550 (6th Cir. 2001) (internal quotations and citations omitted).
In this case, the parties are generally in agreement about these legal standards, but dispute whether the privilege applies to the redacted portions of the report at issue here and, if so, whether the qualified nature of the privilege can be overcome. First, as a preliminary matter, Defendants argue that the deliberative process privilege can be asserted by counsel — a position which Plaintiffs dispute — but, alternatively, provide an affidavit asserting the privilege from DeShaune Sims, a Commander in the Professional Standards Bureau of the Internal Affairs Section of the Detroit Police Department. (Compare DE 56 at 8-9, DE 57 at 2-3; see also DE 56-7.) Having reviewed the affidavit, I conclude that it cures any defect in the assertion of such privilege by counsel and provides factual support for the privilege asserted. Accordingly, I conclude that Defendants have properly asserted the privilege, without having to determine who has standing to assert it.
Second, Defendants assert that the privilege applies to portions of internal affairs reports containing advisory opinions, recommendations, or deliberations, and therefore applies to certain redacted portions of the Dunbeck report. (DE 56 at 7, citing Perry v. City of Pontiac, 07-14036, 2011 WL 4345239, at *6 (E.D. Mich. Sept. 16, 2011) (Lawson, J.)). Plaintiffs counter that the Dunbeck report contains "purely factual investigative materials," and not advisory opinions protected by the privilege. (DE 57 at 5, citing id.) Thus, the only dispute is not over whether the privilege generally applies to a police department's internal investigation reports, or to the specific portions of the Dunbeck report (if any) containing advisory opinions, recommendations, or deliberations, but whether the specific redacted portions of the report at issue are purely factual in nature.
Defendants have provided the Court with redacted and unredacted copies of the Dunbeck report for an in camera review, and claim the deliberative process privilege for the redacted portions of pages 55-57 and 59.
The information in this section is not protected by the deliberative process privilege, because it consists only of factual investigative information. It merely summarizes who Sergeant McKay interviewed during her investigation, the facts on which she based her determinations, and the actions taken by Sergeant McKay during the investigation. See EEOC v. Peoplemark, Inc., No. 1:08-cv-907, 2010 WL 748250, at *2 (W.D. Mich. Feb. 26, 2010).
To be clear, Defendants assert both the deliberative process privilege and the informant privilege to justify the redactions on these pages. (DE 56-8 at 2.) Here, too, I conclude that the deliberative process privilege does not apply to the redacted information in this section. It is merely a summary of the internal affairs investigation, contains only factual information, and is devoid of advisory opinions. As such this section should be unredacted and provided to Plaintiffs. However, the provisions relating to the confidential informant (seemingly limited to six lines in the second full paragraph) are protected by the law enforcement privilege, as noted below, and may remain redacted to the extent that they would identify this individual.
As to this 10-line redaction, Defendants only assert the deliberative process privilege. (DE 56-8 at 2.) This is the closest case for applying the privilege in the Dunbeck report. However, construing the privilege narrowly, this paragraph is not protected. It contains the results of the investigation into Sergeant McKay's conduct. It could be argued that it contains the opinion of Captain Brian Mounsey as to Sergeant McKay's compliance with department policy. However, a closer reading reveals that it merely summarizes the facts on which Captain Mounsey based his determination. The Court further notes an inconsistency in Defendants' redactions to this section. Defendants released the first and third paragraphs of the Second Endorsement, which contain Captain Mounsey's findings and recommendations. The Court fails to see why findings and recommendations in the second paragraph, along with factual summaries, should not similarly be produced. As such, this paragraph should likewise be unredacted and provided to Plaintiffs in its entirety.
Defendants assert the "informant privilege" with regard to certain information redacted from 18 pages in this report. (See DE 56-8 at 1-2.) Plaintiffs do not directly contest the portions of the Dunbeck report that Defendants claim are protected by the law enforcement privilege. (Compare DE 56 at 10-13, DE 57 at 5-7.) Nonetheless, having performed an in camera review of the unredacted report at issue here, and having made the foregoing rulings that the deliberative process privilege does not apply to the above-discussed redactions, the Court feels compelled to specifically address Defendants' assertion of the "informant privilege" as to certain redactions that appear on pages 50 and 56 (DE 38-5 at 50, 56).
The law enforcement privilege preserves the government's ability to "withhold from disclosure the identity of persons who furnish to law enforcement personnel information concerning violations of the law." Holman v. Cayce, 873 F.2d 944, 946 (6th Cir. 1989) (citing Roviaro v. United States, 353 U.S. 53, 59 (1957) and 8 C. Wright & A. Miller, Federal Practice and Procedure § 2019 (1970)). Here, the privilege is properly asserted as to the redacted portions of the Dunbeck report referring to the identity of the confidential informant. In particular, I note Defendants have fairly asserted the "informant privilege" as to the six lines redacted from the final paragraph on Page 50 (DE 38-5 at 50) and the second through fifth sentences of the second full paragraph on Page 56 (DE 38-5 at 56.) (See DE 56-8 at 2.) In other words, even in the portions of the Dunbeck report to be unredacted as set forth above, Defendants may retain the redactions that would identify the confidential informant to whom they allude in their brief.
Finally, Plaintiffs argue that, even if a qualified privilege applies to the redacted information at issue, their need for and interest in the information outweighs the need to shield it. (DE 57 at 5-7.) In light of my conclusion that the information at issue is not protected by the deliberative process privilege, in large part the Court need not address this argument. Notwithstanding the foregoing, any provisions relating to the confidential informant are protected by the law enforcement privilege, as noted above, and may remain redacted to the extent that they would identify this individual.
Moreover, to the extent, if at all, the parties disagree about whether Defendant City of Detroit properly redacted other private and confidential information contained within the Dunbeck Report (compare DE 56 at 13-15, DE 57 at 5-7), such as "pension numbers, social security numbers, addresses, telephone numbers and birth dates[,]" Defendants may retain their redactions of such private information (see DE 38-5 at 60), consistent with any applicable Freedom of Information statutes.
In sum, Plaintiffs' motion to compel is granted in part and denied in part. Specifically, as outlined in my August 26, 2016 interim order, the following must be done: 1) Defendants' counsel must either accept subpoenas on behalf of Officer Hassan or immediately provide Officer Hassan's contact information to Plaintiffs' counsel; 2) Defendants must produce Sergeant McKay for deposition after the conclusion of the state court criminal proceeding; 3) Officer Hassan's deposition must take place on the same day as Sergeant McKay's, the order to be determined by Plaintiffs; and 4) Defendants are entitled to depose Plaintiff Fawaz after the McKay and Hassan depositions have occurred. (DE 55.)
Additionally, Defendants must (at least two weeks prior to the McKay and Hassan depositions) provide Plaintiffs with a copy of the Dunbeck report that has been unredacted consistent with this order.
Finally, nothing in this order shall be interpreted as excusing the parties' compliance with any obligations which may otherwise arise in this federal court civil matter under the Federal Rules of Civil Procedure, the Local Rules of the Eastern District of Michigan, or case management orders, with regard to witnesses' identities and contact information, subject to any legitimate privileges. Defendants' counsel must certify to Plaintiffs' counsel in writing that he (defense counsel) will accept service of any subpoenas on behalf of any present or former City of Detroit employees whose contact information is withheld.
