Behind the Shield? Law EnforcementAgencies and the Self-CriticalAnalysis Privilege

I. IntroductionPrivate citizens frequently sue law enforcement agencies and the governmental bodies to which they answer.1 Often, plaintiffs accuse police officers of violating their civil rights under 18 U.S.C. § 1983.2 With over 215 million private citizens reporting annual face-to-face contact with one of the nearly one million full-time law enforcement employees, problems are certain to occur.3 Plaintiffs file suits against departments of all sizes, from New York City4 to Tuscaloosa, Alabama.5 The city of Oakland, California, recently paid $10.9 million to settle claims brought by over 100 plaintiffs based on the actions of four rogue police officers.6 One county in Maryland paid over $7.9 million injury awards and out-of-court settlements in lawsuits alleging police misconduct between July 2000 and January 2003.7These lawsuits serve as external checking mechanisms by encouraging police departments to act within the bounds of the law or face the consequences of illegal behavior in a civil suit.8 Law enforcement agencies also engage in self-policing through internal affairs investigations, detailed personnel files, and studies regarding police procedures.9 This Note analyzes the competing interests that a court must balance when these checking mechanisms conflict. When individuals sue a law enforcement agency, they often seek discovery of an agency's self-evaluative documents.10 hi response, agencies typically assert numerous privileges in an attempt to protect these documents from discovery.11 The self-critical analysis privilege is one such privilege.The self-critical analysis privilege protects self-evaluative materials from discovery when the public interest in preserving the internal evaluations of organizations outweighs a plaintiffs right to the evidence.12 Courts recognize that organizations may be less likely to engage in self-policing, and in addition may compile less reliable information when doing so, if plaintiffs can access the results of these self-analyses.13 This Note analyzes the foundations of the self-critical analysis privilege as applied to claims brought against law enforcement agencies. Law enforcement agencies are in a unique position to assert a privilege based on the public good because they are duty-bound to act in the public interest. Assertion of this privilege in the law enforcement context provides stark examples of the competing public policies underlying both the validation and rejection of the self-critical analysis privilege.Part II of this Note provides a definition of the privilege and distinguishes it from closely related privileges available to law enforcement agencies.14 Part III provides a history of the privilege in order to highlight the uncertain status of the privilege as well as to provide a perspective for the following policy discussion.15 Part FV analyzes the competing factors that courts must weigh when deciding whether to recognize an assertion of the privilege by law enforcement agencies.16 Part V discusses two hypothetical assertions of the privilege in order to provide concrete examples of both factor-balancing and inconsistencies in the privilege's application.17II. Definition and DistinctionA. DefinitionCourts employ the self-critical analysis privilege to protect documents from discovery when "public policy outweighs the needs of litigants and the judicial system for access to information relevant to litigation."18 As most courts employ it, the privilege consists of three criteria, but may include up to five criteria.19 First, the documents must consist of self-evaluative materials undertaken by the asserting party.20 Law enforcement agencies invoke the privilege attempting to protect such documents as personnel files,21 internal investigation files concerning police officers' conduct,22 transcripts of review committee meetings,23 evaluations of internal affairs divisions' effectiveness,24 reports regarding health care provided to inmates,25 and task force reports of informants' activities. …