McKinney v. United States

Background

Ayesha McKinney, Tracina Ross, and Tammy Bloomer alleged that former United States Probation Officer Dennis Bresnahan sexually harassed and assaulted them while he was their probation officer. They asserted assault, battery, and abuse-of-process claims against the United States under the Federal Tort Claims Act and constitutional claims against Bresnahan individually.

The plaintiffs served written discovery requests on both defendants. The Government later produced 836 pages from the Federal Bureau of Investigation’s investigation of Bresnahan, but redacted portions under the informant privilege and law-enforcement privilege. The Government also provided a privilege log under seal. The plaintiffs argued that the redacted witness interviews, interview summaries, and other investigative materials were relevant to showing that the Government had notice of the alleged misconduct and to preparing for depositions.

At the motion hearing, plaintiffs’ counsel stated that Bresnahan had adequately responded to the discovery requests after the motion was filed. The court then entered a text order finding the motion moot as to Bresnahan. The remaining dispute concerned the Government’s redactions.

Analysis

Federal Rule of Civil Procedure 26(b)(1) allows discovery of nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case.

The court held that the informant privilege protected the identity of a confidential human source who assisted the FBI. The court found that the plaintiffs had not shown a clear need for the source’s identity that outweighed the Government’s interest in confidentiality. It also noted that the relevant redactions appeared on only a few pages and that the plaintiffs could likely obtain the underlying information through other means, including Bresnahan’s deposition. The court therefore declined to compel the Government to remove the redactions marked with the confidential-source code.

The court also addressed the law-enforcement privilege, which protects certain investigative documents and processes. Although the Eighth Circuit had not expressly adopted that privilege, the court applied a balancing approach that weighed the plaintiffs’ need for the information against the potential harm to law-enforcement interests. The Government supported the privilege with a declaration stating that the FBI investigation was closed, that the file contained highly sensitive personal information, and that some materials included pornographic photographs and identifying information about witnesses and alleged victims who were not plaintiffs and might not know their information was at issue.

The court concluded that the FBI’s interest in protecting confidentiality and preserving public trust outweighed the plaintiffs’ interest in obtaining the unredacted interviews. It further concluded that information about Bresnahan’s alleged conduct toward other probationers was, at most, minimally relevant to whether such conduct was a foreseeable risk of the probation-officer profession. A broad review of the FBI’s investigative files was not proportional to the case’s needs, particularly because the plaintiffs could depose Bresnahan and relevant United States Probation Office witnesses.

Disposition

Chief Magistrate Judge Helen C. Adams denied the plaintiffs’ Motion to Compel, ECF No. 114. The opinion does not state that the motion was denied with or without prejudice. The ruling addressed the Government’s discovery response; the court had separately found the motion moot as to Bresnahan.