Baltimore City Police Department v. State

BARBERA, Judge. This case involves a pre-trial order of the Circuit Court for Baltimore City directing that certain portions of a law enforcement officer’s confidential personnel file be disclosed to a defendant in a criminal case. As we shall discuss, central to our disposition of this appeal is that the court ordered discovery of this confidential information without first conducting an ²⁷⁸ in camera review of the officer’s personnel file to ascertain whether it contains matters to which the defense is entitled. This appeal was precipitated by a motion, filed by the Baltimore City Police Department (“Department”), to quash a subpoena filed by counsel for Tevonne Clark, one of two defendants in the underlying criminal case and appellee here.

The subpoena sought the records of the Department’s Internal Affairs Division (“IAD”) concerning Detective Michael Dres-sel. Detective Dressel had participated in the arrest of appel-lee and was scheduled to testify at appellee’s trial on drug charges that, in part, arose out of the arrest. Appellee sought disclosure of Detective Dressel’s personnel record because it contained information concerning an accusation by one or more officers that Dressel had been dishonest in an unrelated matter. Appellee sought the information for purposes of cross-examination of the officer at trial.

The circuit court granted in part and denied in part the Department’s motion to quash. The court did not review Detective Dressel’s IAD file, either alone or with counsel. Nevertheless, the court ordered the Department to disclose to appellee the portions of the IAD file that contained “any statement made by a named police witness that he [Officer Dressel] engaged [in dishonesty] in the past.” The Department has appealed, challenging that order. 1 Two days after we heard oral argument in the case, we issued an order reversing the circuit court’s order and remanding the case to that court with directions that it “enter orders (1) granting the ‘Motion to Quash and/or for Protective Order’ ..., and (2) quashing the subpoena duces tecum for the Department’s disciplinary records.” We further ordered, however, that our disposition be without prejudice to the rights of appellee and/or his co-defendant to seek appropriate relief from the circuit court pursuant to two of our prior decisions, Blades v. Woods, 107 Md.App. 178 , 667 A.2d 917 ²⁷⁹ (1995), and Reynolds v. State, 98 Md.App. 348 , 633 A.2d 455 (1993). We stated that the reasons for our order would be explained in an opinion to follow.

This is that opinion. BACKGROUND The parties stipulated to a joint statement of the case pursuant to Maryland Rule 8-413(b). 2 The statement reads as follows: This matter arises from the criminal trials of co-Defendants Mr. Tevonne Clark and Lynwood Smith, criminal case nos. 102113037 and 102113038. This matter is currently being heard before [ ] the Circuit Court for Baltimore City. On June 12, 2003, a suppression hearing was held in the matter.

During the hearing [Assistant State’s Attorney (“ASA”) ] Rita Wisthoff-Ito moved to limit the examination of Baltimore Police Detective Michael Dressel, so as to exclude inquiries into an Internal Affairs Division (IAD) investigation of Det. Dressel. Importantly, the IAD investigation was not related to the underlying facts of the Messrs. Smith and Clark’s cases.

Rather, the IAD investigation involved allegations of dishonesty unrelated to the instant case. Counsel for Mr. Clark, Assistant [Public Defender] Margaret Teahan, opposed the ASA Wisthoff-Ito’s request, and argued in favor of access. The very next day, Ms. Teahan served a subpoena duces tecum upon the Baltimore Police Department (BPD) for the production of all IAD files relating to Detective Dressel. (Exh. 1).

Soon thereafter, counsel for the BPD, Peter Saar, appeared and moved to quash the subpoena duces tecum. [Ms. Teahan] has since ²⁸⁰ left the Baltimore City Public Defender’s Office, and her cases have been assumed by Daniel O’Connell, Assistant Public Defender. Ruling from the bench, [the court] denied the motion to quash and ordered the production and disclosure of all IAD files relating to Det. Dressel that contained sustained findings of misconduct. In addition thereto, [the court] also ordered the production and disclosure of any IAD files containing allegations of dishonesty.

In support of his decision, [the court] cited Mulligan v. State, 18 Md.App. 588 , 308 A.2d 418 (1973); Robinson v. State, 354 Md. 287 , 730 A.2d 181 (1999); Jorgensen v. State, 80 Md.App. 595 , 565 A.2d 371 (1989); Faulk v. State’s Atty. for Harford Cnty., 299 Md. 493 , 474 A.2d 880 (1984); Hammen v. BCPD, 373 Md. 440 , 818 A.2d 1125 (2003), and Prince George’s County, Maryland v. The Washington Post Co., 149 Md.App. 289 , 815 A.2d 859 (2003). The record also contains the transcripts of the two hearings at which this matter was discussed, and from which we glean the following additional information. 3 On the occasion of its initial order, the court directed the Department to disclose to defense counsel “whatever statement any police officer made about [Detective Dressel].” The parties appeared before the court the following day to discuss the Department’s intended appeal and its effect upon the proceedings in the underlying criminal case. At that time, the court restated its earlier ruling, adding some clarification of it: After hearing arguments on defendant Clark’s subpoena duces tecum, pursuant to Maryland [ ] Rule 4-264 for tangible evidence before trial, and 4-265 for evidence at trial, and the motion for protective order filed by the ²⁸¹ Baltimore Police Department, the Court grants said motion for protective order in part, limiting access to the IAD files with respect to . .. Michael Dressel, except that any statement made by a Baltimore City police officer that Officer Dressel engaged in dishonesty in a now completed investigation in which Officer Dressel has been exonerated shall [be] the subject of the subpoena, and that the Court relied on Mulligan versus State 18 Md.App. 588 [ 308 A.2d 418 ] from 1973 as to the scope of cross-examination as it relates to whether the subpoenaed information is material.

In its written order filed later that day, the court stated its ruling in slightly broader terms: IT IS HEREBY ORDERED this 13th day of June, 2003, by the Circuit Court of Baltimore City that the Motion is GRANTED IN PART limiting access to IAD files with respect to Michael Dressel, except any statement made by a named police witness that he engaged [in dishonesty] in the past, shall be disclosed by IAD to Assistant Public Defender, Margaret Teahan, with a copy forwarded to Assistant State’s Attorney, Rita Wisthoff-Ito. From that order, this appeal was noted. DISCUSSION I. Appellee’s subpoena duces tecum, filed pursuant to Maryland Rules 4-264 and 4-265, sought disclosure before appellee’s criminal trial of records that have been made confidential by statute, specifically Maryland’s Public Information Act (“PIA” or “Act”), Maryland Code (1984, 1999 Repl.Vol., 2003 Supp.), §§ 10-611 et seq. of the State Government Article (“SG”). Our analysis of the court’s action on the Department’s motion to quash this subpoena begins with our review of the pertinent provisions of the PIA.

The PIA protects certain public records from disclosure. “Public record” is defined in the Act as including “the original or any copy of any documentary material that: (i) is made by ²⁸² a unit or instrumentality of the State government or of a political subdivision.” SG § 10 — 611(g)(1). The parties do not dispute that the Department is a unit or instrumentality of the State such that its records come within the purview of the PIA. See Mayor & City Council of Baltimore v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 81 , 617 A.2d 1040 (1993) (stating that records created by the Internal Investigation Division of the Baltimore City Police Department are covered by the PIA).

Personnel records are included among those documentary materials that qualify as public records under the Act. Yet, personnel records are exempt from disclosure under SG § 10-616 of the Act. Specifically, SG § 10-616(a) declares: “Unless otherwise provided by law, a custodian shall deny inspection of a public record, as provided in this section.” And subsection (i) provides: “(1) Subject to paragraph (2) of this subsection [, which permits disclosure to the person in interest, i.e., the employee or an elected or appointed official who supervises the employee’s work], a custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information.” The purpose of treating personnel records as confidential is “ ‘to preserve the privacy of personal information about a public employee that is accumulated during his or her employment.’ ” 78 Op. Att’y Gen. 291, 293 (1993) (citation omitted).

The phrase “personnel record” is not itself defined in the Act. The Court of Appeals has said, however, that “the language of subsection (i) [of § 10-616] discloses what type of documents the Legislature considered to be personnel records.” Kirwan v. The Diamondback, 352 Md. 74, 82 , 721 A.2d 196 (1998). And, “[although this list was probably not intended to be exhaustive, it does reflect a legislative intent that ‘personnel records’ mean those documents that directly pertain to employment and an employee’s ability to perform a job.” Id. at 82-83 , 721 A.2d 196 . The Department asserts that IAD’s file concerning its investigation into allegations of dishonesty on the part of ²⁸³ Detective Dressel qualifies as a personnel record, and appellee does not contend otherwise.

Guided by Kirwcm, we see no reason to disagree with the Department’s position on this point. In addition to the confidentiality protections afforded an employee’s personnel record under SG § 10-616, the Department directs us to the protections afforded law enforcement officers who have been interrogated or investigated by their departments under the Law Enforcement Officers’ Bill of Rights (“LEOBR”). But, as we discuss, infra, the protections afforded an officer under these provisions have been determined by the Court of Appeals to have very little bearing on the discoverability question we address in the case at bar. 4 ²⁸⁴ II. IAD records of the sort at issue here, though made confidential as personnel records by the PIA, are not immune from disclosure to a defendant in a criminal trial.

In Robinson v. State, 354 Md. 287 , 730 A.2d 181 (1999), the Court of Appeals addressed the circumstances under which IAD records are subject to disclosure to a criminal defendant. Robinson , while not entirely on point with this case, illuminates the issue before us, so we shall discuss it at some length. Robinson was tried on charges of assault with intent to murder, armed robbery, and related offenses. At his trial, he sought to review the statements two officers had made to the IAD of the Prince George’s County Police Department.

These statements concerned the circumstances surrounding a robbery and the officers’ subsequent pursuit of the robbers, which led to the arrest of Robinson and his cohort. During the chase, there was an exchange of gunfire between the robbers and the officers. The two officers testified as State’s witnesses, and Robinson wanted their statements for purposes of cross-examination. The issue to be decided by the Court of Appeals was whether Robinson was entitled to the statements as so-called “ Jencks ” or “Carr/Leonard ” material. 5 After reviewing the ²⁸⁵ files in camera and determining that they contained no exculpatory material, the trial court refused to give Robinson access to the statements.

Robinson challenged that ruling on appeal, arguing that statements in the possession of the Prince George’s County Police Department’s IAD are in possession of the State, and are thus discoverable. He also argued that the trial court’s review of the statements in camera was insufficient because, under the Jencks Act, he should have been afforded an opportunity to inspect the statements. Robinson, 354 Md. at 298-99 , 730 A.2d 181 . The Court of Appeals agreed.

No mention was made in Robinson of the privacy protections accorded personnel records under the PIA. The Court did consider, however, whether the confidentiality provisions of the LEOBR (the same provisions as those referred to us by the Department in the case at bar), bear on the question whether the defense in a criminal case is entitled to statements made by an officer pursuant to an IAD investigation. In this regard the Court observed: These provisions deal only with the rights of the officer and serve as a protection for them. They do not address, or even purport to address, the due process concerns that are at the heart of the Jencks/Carr principle and are critical to the resolution of this case.

Indeed, when due process concerns have been involved, the confidentiality of the records have been held to yield to those concerns. Id. at 308 , 730 A.2d 181 (citation omitted). In response to the State’s argument that it was not in possession of the IAD records and so could not be made to disclose them under Jencks, the Robinson Court concluded: “[T]hat a statement may be confidential goes to its discovera-bility, rather than to who possesses it.” Id. at 309 , 730 A.2d 181 . And, because the police are an arm of the prosecution, ²⁸⁶ records kept by the police are deemed in the possession of the State, regardless of their confidential nature.

Id. Moreover, and important to the case at bar, “[wjhile confidentiality does go to discoverability, it does not guarantee insulation of the confidential matter from disclosure. The confidential interest must be balanced, in this context, against the confrontation and due process rights of the defendant [under the Sixth and Fourteenth Amendments].” Id. (Emphasis supplied).

The Robinson Court cited cases from the United States Supreme Court and our Court of Appeals that emphasize the importance of balancing a witness’s privacy interests and the criminal defendant’s right of confrontation. See, e.g., Davis v. Alaska, 415 U.S. 308, 319 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) (weighing a defendant’s right of confrontation against the State’s interest in maintaining the confidentiality of juvenile records, and striking the balance in favor of the defendant’s right of confrontation); Goldsmith v. State, 337 Md. 112, 129 , 651 A.2d 866 (1995) (recognizing that the “defendant’s constitutional rights at trial may outweigh the victim’s right to assert a privilege”); Zaal v. State, 326 Md. 54, 81-87 , 602 A.2d 1247 (1992) (requiring the defendant to demonstrate need for pre-trial disclosure and, if established, requiring the trial court to strike a balance between the victim’s privacy interest and the defendant’s right to a fair trial).

III

We can only assume in the case before us that the trial court concluded that appellee’s rights of confrontation and to a fair trial outweighed the privacy interest Detective Dressel had in his personnel records, and for this reason permitted appellee pre-trial