HARRISBURG – A federal judge has decreed that an Internal Affairs report surrounding an excessive force incident will not be made available to the plaintiff alleging the event took place, while audio recordings of officer interviews will.
U.S. Magistrate Judge William I. Arbuckle rendered that decision on Nov. 10, in Christian Holt’s lawsuit versus the City of Harrisburg and Police Officer John Rosinski. (Police Officer Brandon Yeager and Chief Thomas Carter were dismissed as defendants on Oct. 22).
“In the early morning hours of June 9, 2018, Christian Holt was stopped by Harrisburg Police Officer John Rosinski in what became a ‘use of force incident.’ Two days later, Holt and his father complained about the use of force to the Police Chief [Carter],” Arbuckle said.
“Four weeks later, criminal charges were filed against Holt, only to be dismissed 15 months later on state ‘prompt trial’ grounds, without reaching the merits of the charges. Holt brought this case for violations of his civil rights, seeking damages against the City and Officer Rosinski.”
In July 2018, the Harrisburg Police conducted an Internal Affairs investigation and the City asserts a “deliberative process privilege” to avoid disclosing the 23-page report of that investigation.
According to Arbuckle, the deliberative process privilege is “a form of executive privilege that protects information showing the process by which a government agency reached a particular decision or crafted a specific policy from disclosure to third parties”, which allows the government to “withhold testimony or documents that reflect an agency’s pre-decisional advisory opinions, recommendations and deliberations.”
The resulting discovery dispute was referred to Arbuckle, and the parties suggested during a discovery phone call in May that the report be submitted to the judge for his in camera review.
Arbuckle said after reviewing the documents, listening to the six interviews and researching the deliberative process privilege, he found that the written report was protected by the cited privilege, but the recorded statements were not.
Arbuckle explained that in the documents he reviewed, there were no final decisions about the conduct of the officers and their dealings with Holt, there were merely recommendations regarding future actions, discussions about the actions of the officers and the steps that police department should take to educate officers, as well as discussions about the officer’s judgment and to a lesser extent, their motives.
Arbuckle concluded that the report was protected under the deliberative process privilege, but the audio interviews would receive no such shield.
“The report is made by an Internal Affairs Officer to the Chief of Police, who presumably is the final decision maker following an internal affairs investigation. The report does not discuss, and I do not opine, on the effect of any union contracts on individual officer discipline. From reading the submitted materials, I do not know if any officer was disciplined, if any training was done, or if any policy decisions were made. Therefore, the written report is privileged,” Arbuckle said.
“The audio recordings present a different issue. These recordings are generally not executive level discussions, they are fact finding missions. A police officer, when asked the simple question ‘What happened?’ should not be chilled in his response for fear that the response might someday be made public. Discussing the facts of a particular incident is significantly different than discussing policy about that incident. There are brief segments during the interviews where the discussion turns to what could or should have been done. Those brief segments are arguably within the privilege and may be redacted by the city before disclosure.”
U.S. District Court for the Middle District of Pennsylvania case 1:19-cv-01986
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com