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Federal Court Orders Release of Internal Investigation Report Concerning Anchorage Police Department

By John McKay

A federal judge presiding over an Alaska employment suit filed by a former Anchorage Police Department lieutenant granted a motion by Anchorage Daily News and KTUU-TV for access to an internal investigation report that led to the firing of the lieutenant and secret suspension of the former Anchorage police chief. Henry v. Municipality of Anchorage, Case No. 3:15-cv-0187 RRB (D.Ak. September 25, 2018).

The "Brown Report," for which the Municipality paid over $50,000, was produced under contract with a retired Pennsylvania State Police lieutenant colonel. He concluded that the APD lieutenant had interfered with investigations into allegations of sexual misconduct by National Guard members, and had not been candid during the investigation. The Report also determined that the chief of police had failed to investigate serious allegations of misconduct against the lieutenant. (After trial of former APD lieutenant Henry's civil suit, a federal jury in November awarded him $2.3 million, finding that his termination was in part based on improper retaliation for earlier protected activity on behalf of a fellow officer with a disability.)

The press intervened, filing a motion for access to the Brown Report and related judicial records that had been used by the parties and considered by the court in connection with summary judgment and other motion practice.

The Municipality argued that the Brown Report and its attachments "contain highly confidential and sensitive information regarding sexual assault victims, confidential informants, and other law enforcement investigations." It also argued that if the court were to grant access to the Brown Report "in whole or in part," it should delay access until after trial.

The court granted the Press's motion. Public disclosure of the Report avoided arguments for closing portions of the trial where the Report was to be discussed, or for denying access to the Report despite its presentation to the jury.

The court noted that where a party obtains a blanket protective order without making a particularized showing of good cause with respect to any individual document, it could not reasonably rely on the order to hold these records under seal forever, citing the Ninth Circuit's holdings in Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006), and Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1138 (9th Cir. 2003).

While a "good cause" showing under Rule 26(c) may suffice to keep records attached to non-dispositive motions sealed, the court said, compelling reasons are required to maintain secrecy of documents attached to dispositive motions—even if the motion, or its attachments, were previously filed under seal or were under a protective order. The court also acknowledged that more recent Ninth Circuit rulings reject a mechanistic rule, so that a presumption of public access applies even to documents considered in connection with a motion that is not technically dispositive, so long as the motion is not simply tangential to the case, citing Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th Cir. 2016).

The court found "superficially persuasive" arguments that the jury pool would be tainted before trial began if the Report were the subject of news stories and could be uploaded on the websites of news organizations. It agreed with the Press that "potential jurors" who are "tainted before trial even begins" would be identified during jury selection and excused.

The court also agreed that limited redactions of certain information such as the names of sexual assault victims, confidential informants, and HIPAA protected material would be adequate to rebut the Municipality's claims that there was a compelling interest in not disclosing sensitive information, including information protected by federal and state statutes and regulations.

The Municipality argued that confidential references to investigations and activities of law enforcement agencies other than APD also provided compelling justification for keeping the documents at issue under seal, and that it was not in a position to provide "specific findings" as to activities it was not privy to. The Press argued that the Municipality had simply presented a parade of abstractions, and factually inadequate conjecture. Here, too, the court found that redactions would be sufficient to work around any legitimate concerns of the Municipality.

The court allowed the parties time to address proposed redactions to protect victims, informants, and other sensitive information prior to release of the Brown Report. It ordered the parties to provide the court with joint proposed redactions or a brief explaining why they could not agree, with the ultimate decision about redactions to be determined by the court. The court recognized that by the time the process of finalizing redactions was completed, jury selection would be starting soon in the employment suit. The court said there were no compelling reasons to withhold the Report, once redacted, but exercised its discretion to delay the entry of the Report until a jury had been seated. It found that a brief delay to avoid requiring an additional layer of questioning jurors that might be necessitated by press coverage right before voir dire, and could possibly result in the need for a change of venue, would not significantly prejudice the Press Intervenors, and was in the interest of justice. The Report was released promptly as the trial began.

Before the verdict, the Press requested access to all admitted jury exhibits. Pursuant to its normal practice, the federal court returned exhibits to the parties. However, it ordered that they could provide the Press with all of the thousands of pages of admitted exhibits, with the exception of one set of documents relating sexual assault investigations of National Guard members, which the federal agency providing them insisted remain confidential.

Related State Proceedings

Before filing their federal court motion, the press sought to obtain the Brown Report through a state court suit where it had been used by two former APD detectives alleging racial discrimination and related employment claims. In that case, the Report was admitted, but as "comparator evidence" to show APD was more thorough and professional in investigating non-minority officers, rather than to prove the truth of the investigator's findings. It was marked as an exhibit and provided to the state jury for its deliberations.

In this state case, the judge declined to release the Report to the Press. A significant reason for this was that trial exhibits had been ordered returned to the parties. In particular, the court had directed that the Report and related documents be returned to the Municipality as provided in the protective order pursuant to which they had been produced. The state judge said the documents were no longer "judicial records" in that case, and so were not subject to disclosure based on case law governing access to judicial proceedings and records. Unique circumstances affected the timing of the press's request in this case, but this underscores the need to request access to trial exhibits well before they are to be returned to the parties, usually before the end of trial.

At the outset of the state court trial, the judge in that case had initially ordered, over objections of the Municipality, that the plaintiff could use a redacted version of the Brown Report for limited purposes, and that it would be made public. At the last minute, as prospective jurors were awaiting the start of voir dire—and without notice to the press—counsel for former APD lieutenant Henry intervened and persuaded the state judge to back off on making the Report public to protect his interests in the pending federal employment case.

When the Press later sought access to the Report, the state judge expressed lingering concerns over privacy interests of assault victims that could be impaired through release of the documents he had initially ruled would be public. Also, Henry and the Municipality argued that in the state case, use of the Brown Report was tangential (within the meaning of Center for Auto Safety), and that release of the Report should more appropriately be addressed by the federal court. Henry's counsel claimed there were arguments they could not make in state court because they were based on documents sealed pursuant to a protective order in the federal case, including summary judgment rulings issued under seal by the federal court shortly before arguments on the state court motion. The state judge declined to grant the press access to the Report in that case, and deferred to the federal court.

In subsequent proceedings in federal court, where it ultimately prevailed, the Press moved to unseal the summary judgment rulings relied upon by the intervening former APD officer in the state case. The federal judge granted this motion. The orders, when unsealed, did not support the claims that had been made by Henry's counsel in state court. The Press preserved its right to appeal to the state supreme court from the denial of access in the state court proceedings. After it successfully obtained the documents in federal court, the appeal was deemed moot.

Press Intervenors Anchorage Daily News and KTUU-TV were represented by John McKay, of the Law Office of D. John McKay in Anchorage, Alaska. Plaintiff Lt. Henry was represented by Molly Brown and Meg Simonian, of Dillon & Findley, Anchorage, and the Municipality of Anchorage was represented in the federal litigation by David Symes and Douglas Parker, partners in the Portland, Oregon, office of Littler, Mendelson.

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