While I believe that this question has a factual answer, it may also require a legal opinion. If its more suited to IMHO, please move it. Sorry, its long but I think it needs to be
I work for a county as a police training officer at a police academy. While the staff is comprised primarily of other county employees, officers from other agencies often help out. One, in particular, has been a pretty steady fixture for the past couple of years and her department normally has the largest number of recruits. Last January she submitted an eight page report to her chain of command with a long list of critiques of the ways things are done at our academy. Included were allegations naming a staff member as probably using cocaine while working. She claimed she observed a little bottle with his belongings, that it contained a white powder and that he was acting in a manner with being under the influence. Her stated belief was that the bottle contained cocaine and he was using at the time. She did nothing and reported this to no one at the time. The rest of staff knew of his heart condition and the nitro. She concluded her report with the recommendation that her agency send their recruits to a different academy.
Much to her (later) surprise, her Chief forwarded a copy of her report to our Director. The staff was able to view the report but ordered that we not discuss it with anyone nor treat her any differently as she continued to show up. It was riddled with falsehoods and self-aggrandizement.Our county attorneys, fearing a lawsuit of some sort I presume, issued this order and hired an outside law firm to conduct an investigation. Most of the staff was interviewed, as was this officer. A week or so ago the investigation was completed and a report generated that we were told concluded that we didn’t break any rules or laws but that was “room for improvement”. The officer has been told by our Director that she is no longer welcome at our academy and she will not have anything to do with recruit training in the academy setting. Her own Chief admitted that he was afraid to remove her from her training position for fear of being sued. Except for that last sentence, so far, so good.
Today there was a training with our HR Director as well as the two county lawyers who were part of this fiasco. It wasn’t about this case but more about the harassment about retaliation policies. It is being given to everyone in a supervisory position. At the end of the meeting someone asked if we could see the report generated by the outside law firm. The thinking is (particularly for the one guy) “We’ve been accused in writing, we want to see the vindication in writing” The lawyers response was, “No and don’t ask again” We all took this as a not-so-veiled threat
Finally, here’s the question - would the report be subject to an OPRA request or would this type of thing be exempted? I’m guessing that the “consultative or deliberative material” exemption would apply but IANAL.The entire staff are retired LEOs and no one is afraid to ruffle feathers by making the request, if it is likely to get us the report. Particularly, after they just made a big deal about how retaliation is a big no-no.
Yep. I meant to do that before finally posting. I’m with you as far as denying release but thought maybe there’s a loophole somewhere. From your link "For a document to meet the requirements of the privilege
(1) it must have been generated before the adoption of an agency’s policy or decision, and (2) the document must be deliberative in nature, containing opinions, recommendations, or advice about agency policies.”
In this case, as far as I know, there was no agency policy issue under consideration or any real decision to be made, just allegations. To the best of our knowledge, the outside law firm was on a fact-finding mission, not rendering opinions, making recommendations or advice on policy issues. The county has no say about we run the academy as long as we are not violating county policies and there were no allegations of that.. (We are regulated by the state.) Even if not subject to release, why deny the “accused” the right to see the report? The one staff member is considering filing an internal affairs complaint with the officer’s department. Accusing, in writing, and based on mere speculation, an academy instructor of using illicit drugs while working is a pretty big deal in the profession. The allegations “leaked” from the other department and the rumor mill did its work. I’m not sure what she could be charged with administratively but there is always the catchall of “Conduct Unbecoming”.
She didn’t publish anything, so she can’t be sued for libel. It’s a basic element of the offense.
From the article:
“permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated”
The report was part of an internal deliberation and included recommendations (room for improvement, in your words), and it very well could have lead to policy changes and/or staffing decisions. IANAL but withholding the release would seem like a slam dunk to me. Furthermore, they’ve already said they don’t want to release it, and if they deny an OPRA request, is anyone prepared to challenge that denial in court?
Finally, as an impartial, outside observer, I think you and your department needs to consider the perspective that this woman has done nothing wrong. She documented her observations and opinions in a private communication that she sent to her boss. If the story ended here, it would be a textbook example of exactly what you’re supposed to do – try to handle things within your own chain of command. She didn’t go to the press, she didn’t leak her findings herself, she didn’t go to internal affairs or try to get anyone in trouble; she just wrote down what she thought and recommended her department use a different training provider. There is nothing, IMHO, immoral or unethical about what she did.
The fact that her boss turned around and leaked the report without redacting her name is, again IMHO, the first unethical part of the story. Furthermore, the fact that she was indeed retaliated against, despite your department sending in HR to remind everyone that they shouldn’t be retaliating, is the second concerning part of the story. I know this is FQ so that’s all I want to say on this, but please consider that you may be too close to the situation to be unbiased.
[Moderating]
Yeah, this is definitely asking for legal advice in a specific, non-hypothetical context. Off to IMHO, with the usual advice of “Talk to a lawyer”.
As I expected, there is an exemption for records within “the attorney-client privilege.” As the “investigation” was conducted by a law firm (presumably one working on behalf of the government, to advise it on its legal exposure) it may fall within that.
But you know, I’ll just say, to the extent this woman’s actions have already been smeared here and this in now IMHO in any event, it was damned unprofessional of her Chief, the Director, and staff to share the whistleblower’s unredacted report with everyone. So she was wrong: the white powder wasn’t (in the estimation of a firm that was almost certainly hired to find a way to limit the government’s exposure, not necessarily get at the truth) what she thought it was. But then again, the whole damn thing could have been a whitewash (especially since they went with a law firm—likely subject to attorney-client privilege and thus free from public scrutiny—to handle the “investigation” rather than, you know, some kind of state Inspector General’s office or even, IDK, law enforcement?). And forgive me if I also don’t accept the characterization of people who were named in or whose actions were at least implicitly questioned in the complaint as unbiased arbiters in this situation.
There is a long way to go between a whistleblower complaint being found unsubstantiated and a whistleblower complaint being actually false. And an even longer way to go to being malicious or reckless.
The fact that her name was shared almost off the bat does not give me great confidence that these agencies were genuinely interested in getting to the bottom of things.