The reasons for maintaining the confidentiality of pretrial, probation and
supervised release supervision records are as compelling. In order to obtain
complete and accurate information about the conduct and condition of defendants
and offenders under supervision to ensure they are in compliance with the court’s
orders; in order to monitor their activities to determine if conditions of supervision
or release should be modified, and; in order to better assist in providing correctional
treatment in the rehabilitation process of offenders, probation and pretrial services
officers must be able to get information. Only with confidentiality will the offender
and others be likely to openly share information of these kinds.

Policy Statement Re: Probation and Pretrial Services Records and State Court Subpoenas of

Probation and Pretrial Services Officers 2 (2005).
Il.

For these reasons, the Court QUASHES the subpoena. The Probation Department for
the Southern District of Ohio shall not provide the requested confidential documents.

IT IS SO ORDERED.

W-d%-dOl¥
DATE EDMUND. SARGUS, JR.
CHIEF STATES DISTRICT JUDGE



IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

UNITED STATES OF AMERICA,
Plaintiff, Case No. 3:17-CR-183
Judge Walter H. Rice
v. Magistrate Judge Michael R. Merz
ROBERT A. STROUD,
Defendant.
OPINION AND ORDER

The United States Probation Office for the Southern District of Ohio received on
November 1, 2018, a Subpoena to Produce Documents, Information, or Objects in a Criminal
Case. The Subpoena specifically requests “Robert A. Stroud’s monthly reports in dates and
times from August 1, 2016 through October 31, 2016 in case No. 1:09-cr-0004.” See S. D. Ohio
Crim. R. 32.3, For the following reasons, the Court QUASHES the subpoena.

L

The Director of the Administrative Office of the United States Courts has promulgated
regulations establishing procedures for the production or disclosure of documents and the
testimony of federal judicial personnel, including United States probation officers, in legal
proceedings, Those procedures, outlined in Volume 20, Chapter 8 of the Guide to Judiciary
Policy (the “Guide”), have been adopted by this Court in its local criminal rules. See $.D. Ohio
Crim. R, 32.3(b). Federal judicial personnel may not provide testimony or produce records in
legal proceedings except as authorized in accordance with the regulations set forth in Volume 20,
Chapter 8 of the Guide. Guide to Judiciary Policy, vol. 20, ch. 8, § 820(a); see also In re

Morning Song Bird Food Litig., 119 F. Supp. 3d 793, 799 (S.D. Ohio 2015) (restating the


Guide’s general prohibition on testimony and record production in legal proceedings).

A request for testimony or production of records from judicial personnel “‘shall set forth,
or shall be accompanied by an affidavit setting forth, a written statement by the party seeking the
testimony or production of records, or by counsel for the party.” Guide to Judiciary Policy, vol.
20, ch. 8, § 830(a). The statement or affidavit must contain “an explanation of the nature of the
testimony or records sought, the relevance of the testimony or records sought to the legal
proceedings, and the reasons why the testimony or records sought, or the information contained
therein, are not readily available from other sources or by other means.” Jd. “This explanation
shall contain sufficient information for the determining officer [as identified below] to determine
whether or not federal judicial personnel should be allowed to testify or the records should be
produced.” Jd. If the request lacks a sufficient explanation, the determining officer may deny the
request or ask that the requester provide additional information. Jd.

Judicial personnel may not provide testimony or produce records in legal proceedings

without the prior approval of a “determining officer.” Guide to Judiciary Policy, vol. 20, ch. 8, §
840(a). The determining officer varies depending on the request. As to requests directed to an
employee or former employee of a court office—such as the Clerk’s office, the Probation office,
or the Pretrial Services office—the determining officer is the unit head of the particular office—
such as the Clerk of Court, the Chief Probation Officer, or the Chief Pretrial Services Officer.
Id. § 840(b)(3). If a request is directed to a court office, the determining officer shall consult
with the Chief District Judge regarding the proper response to the request. Jd.; see also S.D. Ohio
Crim. R. 32.3(c).

“In response to a request for testimony or the production of records by federal judicial

personnel in legal proceedings . . . the determining officer may determine” whether and how the


judicial personnel may respond. Guide to Judiciary Policy, vol. 20, ch. 8, § 850(a). The
determining officer may deny a request if the request does not meet any requirement imposed by
Volume 20, Chapter 8 of the Guide. Id. Moreover, when determining whether to authorize the
production of judicial records or the testimony of judicial personnel in legal proceedings, “the
determining officer will consider, based on [several enumerated factors], the effect in the
particular case, as well as in future cases generally, which testifying or producing records will
have on the ability of the federal judiciary or federal judicial personnel to perform their official
duties.” Id.

I.

Here, after consulting with the Chief United States Probation Officer, the Court
concludes that the Probation Department shall not comply with the subpoena. The subpoena was
not issued in accordance with the requirements established in Volume 20, Chapter 8 of the
Guide. The subpoena did not set forth, or contain an affidavit setting forth, “an explanation of
the nature of the testimony or records sought, the relevance of the testimony or records sought to
the legal proceedings, and the reasons why the testimony or records sought, or the information
contained therein, are not readily available from other sources or by other means.” Guide to
Judiciary Policy, vol. 20, ch. 8, § 830(a).

Reinforcing the Court’s decision is the policy underlying the Probation Office’s
collection and maintenance of information. Probation Office policy explains that

[cJonfidentiality of pretrial services information is preserved primarily to
promote a candid and truthful relationship between the defendant and the pretrial
services officer. Disclosure of pretrial services information for purposes other than

for the determination of pretrial release deters defendants from cooperating with

pretrial services officers. The officers’ ability to collect information is adversely

affected by too closely identifying the officers with parties requesting the
disclosure.