ENTRY ON PLAINTIFF’S MOTION TO COMPEL
I. Introduction.
Aaron Anderson, an African-American male, claims that a female co-worker falsely accused him of sexual harassment. Due to this accusation, Defendant Marion County Sheriffs Department (“MCSD”) held a disciplinary hearing and ultimately found that Anderson violated MCSD policies concerning sexual harassment, cooperation with investigations, truthfulness, general conduct and conduct unbecoming an officer. Based on these findings, the disciplinary hearing board recommended that Anderson be demoted from lieutenant to corrections officer, receive a one-day suspension, and attend sensitivity training concentrating on sexual harassment. Thereafter, Colonel Larry Logsdon placed Anderson on administrative leave with pay and required him to undergo a psychological fitness for duty examination. In addition, according to Anderson, Logsdon and Deputy Chief Patrick Commiskey forced Anderson to resign by threatening to “add two (2) pages into his personal file about the sexual harassment incident which would make Anderson personally liable for defending a $300,000 lawsuit, and also, prevent him from obtaining another job.” [Compl. II18].
As a result, Anderson brought suit against MCSD claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Anderson also sued Commiskey and Logsdon in both their official and individual capacities pursuant to 42 U.S.C. § 1983, claiming violations of the Fourteenth Amendment’s Equal Protection Clause. Specifically, Anderson claims that the Defendants discriminated against him by treating similarly situated Caucasian officers accused of sexual harassment more favorably. During discovery, a dispute arose regarding disclosure of certain information contained in MCSD’s internal affairs files. Unable to resolve the matter, Anderson filed a motion to compel which is presently before the Court. For the reasons stated below, Anderson’s motion to compel is GRANTED IN PART and DENIED IN PART.
II. Focus of Discovery Dispute.
Anderson’s motion to compel involves numerous requests for production and interrogatories.
III. Discussion.
A. Deliberative Process Privilege.
“The deliberative process privilege protects communications that are part of the decision-making process of a governmental agency.” United States v. Farley,
The Court need not engage in this balancing process, however, because the deliberative process privilege does not extend to the circumstances of this case.
The privilege was fashioned in eases where the governmental decisionmaking process is collateral to the plaintiffs suit. If the plaintiffs cause of action is directed at the government’s intent, however, it makes no sense to permit the government to use the privilege as a shield. For instance, it seems rather obvious to us that the privilege has no place in a Title VII action or in a constitutional claim for discrimination.
In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency,
Moreover, the privilege “should be invoked only in the context of communica
The Court agrees with the reasoning of these various jurisdictions and concludes that the deliberative process privilege is unavailable where, as here, the plaintiff alleges employment discrimination under either Title VII or 42 U.S.C. § 1983. See Williams,
However, even if the Court were to balance the competing factors typically applied in deliberative process privilege cases, the privilege would not apply because MCSD failed to meet its burden. In determining whether the deliberative process privilege applies, courts have devised a two-part inquiry: (1) “whether the government has shown that the privilege applies to the documents [or communications] the government seeks to protect;” and (2) “[i]f the government meets its threshold burden of showing that the privilege applies, the litigant has the burden of showing that it has a particularized need for the documents.” K.L., L.F., and R.B. v. Edgar,
(1) the department head with control over the matter must make a formal claim of privilege, after personal consideration of the problem; (2) the responsible official must demonstrate, typically by affidavit, precise and certain reasons for preserving the confidentiality of the documents in question; and (3) the official must specifically identify and describe the documents.
Edgar,
(1) the relevance of the documents to the litigation; (2) the availability of other evidence that would serve the same purpose as the documents sought; (3) the government’s role in the litigation; (4) the seriousness of the litigation and the issues involved in it; and (5) the degree to which disclosure of the documents sought would tend to chill future deliberations within government agencies, that is, would hinder frank and independent discussion about governmental policies and decisions.
Id. Considering this framework, the Court concludes that the deliberative process privilege is inapplicable to the instant matter.
Moreover, as Anderson points out, four of the five documents the MCSD has identified appear to be statements from witnesses and, therefore, factual in nature. “The privilege does not extend to factual or objective material or to documents that the agency adopts as its position on an issue.” Edgar,
B. Law Enforcement Investigatory Privilege.
In Jones v. City of Indianapolis,
The law enforcement investigatory privilege is “a qualified common law privilege protecting civil as well as criminal law enforcement investigatory files from civil discovery.” In re Adler, Coleman, Clearing Corp.,1999 WL 1747410 , *3 (S.D.N.Y.1999), citing Friedman v. Bache Halsey Stuart Shields, Inc.,738 F.2d 1336 , 1341 (D.C.Cir.1984). See also Hernandez v. Longini,1997 WL 754041 , *3-4 (N.D.Ill.1997) (law enforcement investigatory privilege arises under common law and is “incorporated under Fed.R.Civ.P. 26(b)”); United States v. Lilly,185 F.R.D. 113 , 115 (D.Mass.1999) (“The federal courts have recognized a qualified common-law privilege ... for law enforcement investigatory information.”). The purpose of the privilege “is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise prevent interference in an investigation.” In re Polypropylene Carpet Antitrust Litigation,181 F.R.D. 680 , 686-87 (N.D.Ga.1998), quoting In re Department of Investigation,856 F.2d 481 , 484 (2d Cir.1988). See also United States v. Winner,641 F.2d 825 , 831 (10th Cir.1981) (“The law enforcement investigative privilege is based primarily on the harm to law enforcement efforts which might arise from public disclosure of ... investigatory files.”).
“A finding that the documents fall within the scope of the law enforcement investigatory privilege does not end the Court’s analysis.” Polypropylene,181 F.R.D. at 688 . The law enforcement investigatory privilege is not absolute. It can be overridden in appropriate eases by the need for the privileged materials. See Dellwood Farms, Inc. v. Cargill, Inc.,128 F.3d 1122 , 1125 (7th Cir.1997), citing Tuite v. Henry,98 F.3d 1411 , 1417-18 (D.C.Cir.1996). The balancing of that need — the need of the litigant who is seeking privileged investigative materials' — against the harm to the government if the privilege is lifted “is a particularistic and judgment task.” Dellwood Farms,128 F.3d at 1125 . It is therefore confided to the discretion of the district court, meaning that appellate review is deferential. Id., citing Tuite,98 F.3d at 1415-16 . Defendants, the party claiming the privilege, bear the burden of justifying application of the investigatory privilege. See Doe v. Hudgins,175 F.R.D. 511 , 514-15 (N.D.Ill.1997).
In balancing the public interest in protecting police investigations against the needs of civil rights plaintiffs, the Court will consider ten factors first announced in Frank-enhauser v. Rizzo,59 F.R.D. 339 , 344 (E.D.Pa.1973), which, “although not exhaustive, are useful in making this determination.” Tuite v. Henry,181 F.R.D. 175 , 177 (D.D.C.1998). These factors are:
(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;
*564 (5) whether the party seeking 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 the investigation has been completed;
(7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation;
(8) whether the plaintiffs suit is nonfrivo-lous and brought in good faith;
(9) whether the information sought is available through other discovery or from other sources; and
(10) the importance of the information sought to the plaintiffs case.
Tuite,181 F.R.D. at 177 , citing Franken-hauser,59 F.R.D. at 344 . The Court has “considerable leeway” weighing these factors in the undertaking of the essential balancing process. Tuite,181 F.R.D. at 177 .
Jones,
Although the Seventh Circuit has never expressly cited to Frankenhauser or its factors, that court has advanced tacit approval of Frankenhauser’s balancing test through reliance on cases that have approved its application. See Dellwood Farms,
Before turning to the Frankenhauser factors, the Court first notes that Anderson maintains that the law enforcement investigative privilege is unavailable in situations involving the “investigation or discipline of employees based upon their conduct with eoworkers.” [Docket No. 33, p. 9]. Anderson argues that “[t]here is no reason to afford law enforcement agencies a privilege not available to other public and private employers that necessarily engage in the same types of investigations when faced with questions of employee misconduct.” [Docket No. 33, pp. 9-10]. However, neither Anderson nor the Court’s own research provides authority for this proposition. To the contrary, a least one court faced with a similar issue specifically applied the Frankenhauser factors in determining whether the privilege applied. See Burke v. New York City Police Department,
1. The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information.
With respect to this factor, Anderson argues that “MCSD cannot credibly argue that disclosure in this case will discourage citizens from providing information. All of the statements and materials identified by MCSD were given and generated by MCSD’s own employees.” [Docket No. 33, p. 11]. MCSD counters by pointing out that this Court has previously held that disclosure of witness testimony would have a chilling effect on citizens coming forward to assist with law enforcement investigations in the future. See Jones,
If defendants are saying that police officers are more likely to be untruthful if they know potential plaintiffs might receive their reports than they ordinarily are when they are faced with possible departmental disciplinary action, the court does not accept their argument. The court recognizes that police department self-evaluation and remedial action do serve an important police policy, but such policy will not be hindered by the disclosure ordered here.
Burke,
2. The impact upon persons who have given information of having their identities disclosed.
MCSD argues that “[t]he potential harm to individuals who provide the police with information in having their identities revealed is not to be ignored.” [Docket No. 42, p. 7], citing Tuite v. Henry,
MCSD’s reliance on Tompkins’ affidavit is equally unpersuasive. Citing Tompkins’ affidavit, MCSD maintains that the requested files “contain sensitive and confidential information, which has no bearing on Plaintiffs claims” and that “[c]itizens and fellow officers may feel intimidated by providing evidence that may implicate an officer in activity that may lead to disciplinary action.” [Docket No. 42, p. 7]. The problem with these statements is that they involve generalities. The determination of whether the law enforcement investigatory privilege applies in a certain case “is a particularistic and judgmental task.” Dellwood Farms, Inc. v. Cargill, Inc.,
3. The degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure.
MCSD argues that this factor favors non-disclosure because disclosure of investigative techniques and strategies would negatively impact the department’s self-critical analysis and “compromise the IA Section’s ability to conduct effective investigations ____” [Docket No. 42, p. 8]. Additionally, MCSD submits that “[disclosure of the files and the material contained therein will
Anderson’s point is well taken. However, while a close call, this factor weighs in MCSD’s favor. The need for open and frank communications with respect to internal investigations relating to allegations of discrimination or harassment, whether preformed by a police department or a private employer, is important. Disclosure could certainly have a chilling effect on the willingness of employees to participate openly in such investigations. Accordingly, this factor weighs against disclosure.
4. Whether the information sought is factual data or evaluative summary.
Typically, courts require reports containing both factual and evaluative materials to be disclosed in civil rights actions brought pursuant to 42 U.S.C. § 1983. In such cases, the evaluative material may be the best evidence available of the state of mind of the defendant and exempting the evaluative materials from discovery “might well bar jury scrutiny of highly relevant evidence which cannot be adequately developed in any other way.” [Crawford v. Dominic,469 F.Supp. 260 , 265 (E.D.Pa.1979)]. The rationale supporting the disclosure of this material was best described by the court in [King v. Conde,121 F.R.D. 180 , 192 (E.D.N.Y.1988)]. In King, the court rested its decision to permit disclosure of materials that included evaluative summaries on the fact that when the summaries were created “the possibility of disclosure to civil rights plaintiffs [was] probably not of great import to the officers at the time they file[d] their reports.” Id. The court explained that “[a]n officer’s incentives to hide a friend’s misconduct, or to be scrupulously forthcoming lest he be disciplined for having concealed information, are probably much more closely tied to the internal investigative machinery than to the fear of civil rights litigation.” Id. With these considerations in mind, the court concluded that disclosure would not impact the inclusion of truthful evaluative or deliberative materials in officers’ reports.
Tuite,
5. Whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question.
MCSD acknowledges that Anderson is neither an actual nor a potential criminal
6-7. Whether the investigation has been completed and whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation.
MCSD acknowledges that “[t]he individuals at issue are not involved in ongoing investigations.” [Docket No. 42, p. 9]. In addition, any disciplinary proceedings arising out of those investigations have been completed. These factors weigh in favor of Anderson.
8. Whether the plaintiffs suit is non-frivolous and brought in good faith.
MCSD does not claim that Anderson’s suit is frivolous or brought in bad faith. Thus, this factor weighs in favor of Anderson.
9. Whether the information sought is available through other discovery or from other sources.
With respect to this factor, MCSD maintains that it has “already produced personnel files and disciplinary records pertaining to the three individuals at issue” and that Anderson “could depose the decision makers and any other individuals identified in those documents.” [Docket No. 42, p. 10]. In addition, MCSD states that, “[w]hile those individuals would not be able to testify regarding deliberative matters, they may be to testify to factual issues within their personal knowledge.” [Docket No. 42, p. 9]. In contrast, Anderson argues that “the question of intent is the central issue in the ease” and, therefore he is entitled to evidence regarding the bases of those decisions where similarly situated, non-African-American employees were allegedly treated more favorably. [Docket No. 33, pp. 13-14; Docket No. 43, pp. 7-8]. Anderson asserts that the information cannot be obtained solely from depositions because witnesses may not accurately recall what they told investigators and decision makers may not accurately recall the bases for their decisions. [Docket No. 33, p. 14].
Anderson’s position is well taken and the Court finds that this factor weighs in his favor. First and foremost, “employment discrimination cases typically involve questions of intent and credibility.” Alexander v. Wisconsin Dept. of Health and Family Services,
10. The importance of the information sought to the plaintiffs case.
The final factor in the Frankenhauser balancing test — the importance of the information to the plaintiffs case — has been described by courts as the most crucial. See Tuite v. Henry,
With respect to this factor, MCSD does not argue that the requested information is unimportant to Anderson’s case. Instead, MCSD asserts that the information can be gathered through other sources. For example, MCSD proffers that “[t]he information contained in the disciplinary and personnel files sets forth the factual basis for the actions taken and gives Plaintiff the information he seeks as to whether he was treated differently from other similarly situated indi
As the above discussion indicates, consideration of the Frankenhauser balancing test strongly favors disclosure in this case. Therefore, the law enforcement investigatory privilege is no bar to disclosure.
IV. Conclusion.
Based on the foregoing, the Court finds that the deliberative process and law enforcement investigatory privileges are unavailable to Defendants under the facts of this case. Accordingly, Anderson’s motion to compel is GRANTED to the extent it relates to discovery requests in which Defendants objected based on these privileges. To the extent Anderson’s motion seeks to compel answers to Interrogatory Nos. 16 through 18, it is DENIED AS MOOT. Defendants shall, within twenty days, supplement their discovery responses in accordance with this entry.
Notes
. Anderson seeks to compel Defendants' responses to Request for Production Nos. 1, 2, 3, 5, 6, 7, 14, 15, 16, 19, 26, 27, 31, 39 and 40, and Defendants' answers to Interrogatory Nos. 16 through 18.
. Defendants claim that Anderson’s motion to compel is premature with respect to Request Nos. 19 and 27 because Anderson’s counsel failed to comply with Local Rule 37.1 with respect to these two requests. [Docket No. 42, p. 2], However, as Anderson points out, Defendants' objections to these requests also involve the deliberative process and law enforcement investigatory privileges. Accordingly, the Court considers these requests as well.
. In addition to what the Court views as the main controversy regarding privileges, Anderson seeks to compel certain interrogatory answers seeking information regarding other internal complaints, administrative charges and/or lawsuits within the past five years alleging equal protection denial, race discrimination or sex discrimination. Subsequent to Anderson's motion to compel, Defendants supplemented their answers to the disputed interrogatories. Defendants' supplementation has, at least for the moment, satisfied Anderson. [See Docket No. 43, p. 12] ("Plaintiff does not at this point request that Defendant engage in further review of its files based upon Interrogatory Nos. 16-18."). Accordingly, to the extent Anderson's motion seeks to compel answers to Interrogatory Nos. 16 through 18, it is DENIED AS MOOT.
. Anderson argues that "[a]s an initial matter, the privilege is not available to a municipal agency such as MCSD.” [Docket No. 33, p. 6]. While Defendants' argument to the contrary is not particularly persuasive, the Court need not definitively decide this issue. Even assuming the deliberative process privilege is available to municipal agencies, it is not applicable in the instant matter.
. On a related note, Federal Rule of Civil Procedure 26(b)(5) expressly states:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
Thus, the time to malte the showing that certain information is privileged is at the time the privilege is asserted, not months later when the matter is before the Court on a motion to compel. This requirement is to allow parties to try and resolve discovery disputes prior to Court intervention. Such procedure is in line with the letter and spirit of Local Rule 37.1, which mandates informal conferences regarding discovery disputes prior to filing formal motions. See. S.D.Ind. L.R. 37.1. Thus, even if Tompkins' affidavit met the requirements that establish a deliberative process privilege, the affidavit arguably comes too late. See Miller v. Pancucci,
. In response to Anderson's Interrogatory No. 19, MCSD identified those documents it is withholding from production due to the deliberative process privilege. They are:
Internal Affairs Files including Memo, dated 2/12/02, from Sgt. Scott Wildauer to Lt. Bill Lorah, re: Sexual Harassment, C/O Lt. Aaron Anderson, Jail Division; Statement to Internal Affairs from Tammy Mathis, dated 1/24/02; Statement to Internal Affairs from Lisa McClure, date 1/18/02; Statement to Internal Affairs from Susan Donahue, dated 1/25/02; Statement to Major Tally-Sanders from David Hutson, dated 1/28/02
[PL’s Ex. B; Def.’s Ex. A] (emphasis added). While MCSD specifically identifies five documents within Anderson's Internal Affairs file that it maintains are privileged, it is clear that MCSD wishes to maintain secrecy as to all documents within that file. These documents were not specifically identified by MCSD. Moreover, nowhere does MCSD identify those documents it maintains are confidential within Mark Shilling's or Steven Eltzroth's Internal Affairs files. Thus, even if MCSD’s interrogatory response were adequate to meet the "department head” requirement, it fails to specifically identify all documents it maintains are privileged.
. Many of the same considerations supporting the conclusion that the deliberative process privilege does not apply to civil rights cases involving intent also apply to the law enforcement investigatory privilege. However, the law enforcement investigatory privilege contains additional considerations such as whether the investigation has been completed and whether disciplinary proceedings have arisen or may arise from the investigation. In certain circumstances not present here, these factors may tip the scales in favor of non-disclosure.
. The Court notes, however, the difficulty in determining what material is factual and what is evaluative. As already discussed, MCSD only specifically identified five documents. Of these five, four appear to be witness statements and, thus, factual. MCSD describes the fifth document as a memo from Sgt. Wildauer to Lt. Lorah regarding the sexual harassment complaint against Anderson. This description does not indicate whether the memo "evaluates” Wildauer's findings or whether it is simply a factual summary of the witness statements. While the Court assumes that internal affairs files do contain evaluative material, MCSD’s description of what is generally found in an internal affairs file does not allow the Court to perform the required “particularistic” inquiry. See Dellwood Farms,
. Based upon a cursory review, this decision might be viewed as a departure from the Court's earlier, unpublished Entry on Plaintiff's Motion to Compel Discovery in Taylor v. Marion County Sheriff, IP02-1008-C-H/K (S.D.Ind. July 18, 2003)). [Docket No. 48]. A closer examination shows otherwise. In Taylor, the Court noted that the law enforcement investigatojty privilege might be overcome if the plaintiff in that case were able to "identify a few specific, crucial comparators," "if the IA investigations into their conduct were completed,” and the information was otherwise unobtainable. Such is the case in the instant matter.