OAH Docket No. 15-1700-18042-2
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
|
State
of Velma
Korbel, Commissioner, Department
of Human Rights, Complainant, v. Respondent.
|
ORDER ON MOTIONS TO COMPEL DISCOVERY |
This matter is before Administrative
Law Judge Beverly Jones Heydinger on cross motions by
Margaret
Jacot, Assistant Attorney General,
Based upon the record in this matter,
the Administrative Law Judge makes the following:
1.
The Department
shall provide its investigative file relative to Mary Parsons to the
Administrative Law Judge within fourteen days of receipt of this Order for the
Administrative Law Judge’s in camera
review of the file. Following her in camera review of the file, the
Administrative Law Judge will provide Respondent with copies of the documents
she deems appropriate based on the discussion in the following Memorandum.
2.
The Department
shall categorize each document in the file, identifying what type of document
each is (e.g., “interview transcript,” “internal strategy memorandum”
etc.). For each type of document
designated, the Department will describe specifically why that type of document
is not discoverable. The Department may
withhold documents that are direct communications addressed to or from its
attorney and protected by the attorney-client privilege. This does not include documents which
indicate that its attorney was one of the persons copied.
3.
Respondent’s
motion to compel the Department to fully respond to Interrogatories 4, 5 and 7 and
Requests for Production of Documents 9 and 10 within five business days of
receipt of this order is DENIED.
However, the Department shall fully respond to Interrogatories 4, 5 and
7 and Requests for Production of Documents 9 and 10 within five business days
of the date the Department obtains the information necessary to respond to
those Interrogatories.
4.
The
Department’s motion to compel discovery responses is GRANTED. Respondent shall provide all documents
responsive to request number three of the Department’s First Set of Requests
for Documents to the Department’s counsel within fourteen days of receipt of
this Order.
5.
All data
provided to the parties pursuant to this Order which is not public under the
Minnesota Government Data Practices Act is subject to the Protective Order issued
in this matter on October 3, 2007.
Dated: October 3, 2007
s/Beverly
Jones Heydinger
_________________________
BEVERLY
JONES HEYDINGER
Administrative
Law Judge
Respondent’s Motions to Compel
Respondent
brought its motion to compel discovery responses after the Department refused
to provide its investigative file relating to Mary Parsons’ complaint
underlying this action, as well as responses to Interrogatories 4, 5 and 7 and
Requests for Production of Documents 9 and 10, all of which concerned damages
claimed by Ms. Parsons. The basis for
the Department’s refusal to answer Interrogatories 4, 5 and 7 and to provide
the documents requested in Requests for Production 9 and 10 is that the
Department does not yet have the information or documents requested. The Department states in its discovery
responses that “it will produce such documents [and information] when they
become available” and acknowledges in its Memorandum in Response to
Respondent’s Motion to compel “that discovery is an ongoing process and that
[the Department] is obligated to supplement the responses provided in [its] Answer.” Given these assertions, it is not unnecessary
to order the Department to produce this information at this time. However, the Department shall provide the
requested information and documents promptly as soon as it is able to do so.
Thus, the Department has the
discretion to release the investigative file in this matter, but is choosing
not to, based on an assertion that the file “contains information that reveals
internal processes, procedures and decisions of [the Department].”[2] The Department then alleges:
The
only documents in the investigative file which were created by [the Department]
are documents which reflect the internal processes of the Department and have
no bearing on what actually occurred during Ms. Parsons’ employment with
Respondent. Discovery of that
information could interfere with the Department’s ability to investigate future
charges. Meanwhile, Respondent can
obtain relevant evidence through its own investigation.[3]
The Department’s attempt to
distinguish between documents which it created from other documents is not
relevant for purposes of analyzing what is discoverable. The Department has an affirmative obligation
to release certain information which seems likely to be in the investigative
file.
Parties
may obtain discovery regarding any matter, not privileged, that is relevant to
a claim or defense of any party, including the existence, description, nature,
custody, condition and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any
discoverable matter.
The broad brush with which the
Department asserts its objection to Respondent’s discovery request makes it
impossible to determine whether, or to what extent, its investigative file is
subject to discovery. The Department has
not asserted any privilege recognized by law for withholding information from
its file. While there may be documents
which are not discoverable, such as those protected by attorney-client
privilege, the ALJ cannot determine what they may be based on the Department’s
response. Therefore, the ALJ is
requiring the Department to submit, for in
camera review, the documents with specific information about the type of documents
being submitted and how or why the documents should not be made available.
The Department’s Motion to Compel
As part of its discovery request, the
Department sought “all documents relating to requests for accommodation or
complaints of discrimination by any persons employed by the Clay County
Attorney’s office during the years 2001-2005.”[4] While acknowledging that, in 2005, an
employee had requested and been denied additional leave after exhausting
guaranteed leave under the Family and Medical Leave Act, Respondent declined to
identify the employee in question because “[i]dentification of the individual
is not permitted by the Minnesota Government Data Practices Act.”[5]
In its response to the Department’s
motion, Respondent stated “the sole basis for Respondent’s refusal to respond
to [the] document [r]equest . . . is the fact that, pursuant to the
B. J. H.
[1] See Minn. Stat. § 13.02, subd. 3. “‘Confidential data on individuals’ means
data which is made not public by statute or federal law applicable to the data
and is inaccessible to the individual subject of that data.” and § 13.02, subd.
13. “‘Protected nonpublic data’ means
data not on
individuals which is made by statute or
federal law applicable to the data (a) not public and
(b) not accessible to the subject of
the data.”
[2]
Department’s
Memorandum in Opposition to Respondent’s Motion to Compel Discovery at page 3.
[3]
[4]
Department’s
Motion to Compel Discovery Responses at page 2.
[5]