OAH Docket No. 15-1700-19337-2
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
|
State
of Velma
Korbel, Commissioner, Department
of Human Rights, Complainant, v. Unbank
Company, LLP, Respondent.
|
ORDER COMPELLING DISCOVERY |
This matter is before Administrative
Law Judge Beverly Jones Heydinger to consider the request from the Respondent
to compel response to discovery in this proceeding.
Margaret
Jacot, Assistant Attorney General,
The Department has refused to turn
over its file to the Respondent because it contends that doing so will disclose
the Department’s investigative process.
It has submitted the file to the Administrative Law Judge for in camera review. Minnesota Statutes section
363A.35, subd. 2 classifies human rights investigative files as confidential or
protected nonpublic data, which means that they are generally not available
even to the subjects of the data.[1] The statute contains several exceptions to
these restrictions, including subdivision 2 (c) which permits the Commissioner
of Human Rights to “make human rights investigative data contained in an open
case file accessible to a person, government agency, or the public if access
will aid the investigative and enforcement process” after making a finding of
probable cause in a case.
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.
Based upon the record in this matter, and
for the reasons more fully set forth in the accompanying memorandum the
Administrative Law Judge makes the following:
1.
The Department
shall provide its investigative file in this matter within ten working days of
receipt of this Order, subject to the following exceptions:
a.
Copies
of documents supplied by the Respondent.
It is sufficient to provide the Respondent with a list of the documents
or otherwise identify them for the Respondent;
b.
Duplicates
of other documents in the file.
c. The
name of a third party mentioned in the interview of Tykeisha Crouch in response
to Question 19 (marked as MDHR 440) should be redacted before the copy is
turned over to the Respondent.
2.
At
this time, there is no apparent basis to issue a Protective Order.
Dated: February 26, 2008
s/Beverly
Jones Heydinger
_________________________
BEVERLY
JONES HEYDINGER
Administrative
Law Judge
The Department has asserted that
release of its file will disclose its internal process and hamper its ability
to conduct investigations. However, when
proceeding to a contested case, the Department has an affirmative obligation to
release certain information.
Subpart
2 of the same rule permits that [a]ny means of discovery available pursuant to
the Rules of Civil Procedure for the District Court of Minnesota is
allowed.” Rule 26.02 of those rules
generally state:
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 general rule is that material
assembled pursuant to public requirements, materials gathered in the ordinary
course of business, or for other non-litigation purposes are not work product
and are discoverable.[2] In Human Rights cases, the materials are
protected until a determination is made that a charge will be filed. That is sufficient protection for the
investigative process. The Department
has not asserted any privilege recognized by law for withholding information
from its file after the charge is filed.
None of the documents in the file would appear to be covered by the
attorney-client privilege. Moreover,
there is no assertion that the documents were prepared for litigation after the
charging decision.[3]
The Department has not provided any
basis in statute for its claimed interest in protecting internal deliberative
process once the charge has been filed. Moreover, the majority of the
information in the file apart from the witness statements was apparently
submitted to the Department by the Respondent.
There is no basis for failing to disclose the presence of this
information.
Thus, with the exceptions set forth in
this Order, the Department shall disclose the contents of its file to the
Respondent.
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]
Herr and
[3] See