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The Delaware State Police cannot rely on a state confidentiality law as grounds for resisting a subpoena from the U.S. Equal Employment Opportunity Commission since federal discrimination laws trump any state privilege, the 3rd U.S. Circuit Court of Appeals has ruled. In a 21-page opinion in EEOC v. Delaware State Police, a unanimous three-judge panel rejected the argument that the Delaware Law Enforcement Officers’ Bill of Rights protects certain police personnel records from disclosure even when subpoenaed by a federal agency. U.S. Circuit Judge Theodore A. McKee wrote: “The Law Enforcement Officers’ Bill of Rights not only conflicts with Title VII’s access provisions, it would totally frustrate them here.” McKee, who was joined by U.S. Circuit Judges Walter K. Stapleton and Marjorie O. Rendell, found that U.S. District Judge Sue L. Robinson erred by summarily dismissing the EEOC’s petition to have its subpoena enforced. Since Robinson wrote no opinion, McKee said it was impossible to say whether she had abused her discretion. As a result, McKee said, the appeals court decided to remand the case to Robinson “so that the court can explain its analysis or conduct further proceedings.” But instead of simply sending the case back, McKee first addressed several of the issues raised in the appeal. The case stems from an EEOC complaint filed by Ivan Taylor who was fired from the Delaware State Police in February 1995. Taylor was accused of 12 infractions, including several that involved improper conduct with women. After a hearing, he was found to have committed nine of the 12, including using a false pretext to stop a female driver; making inappropriate sexual comments to a woman during a traffic stop; pursuing a romantic relationship with a 16-year-old girl while his traffic charge was pending against her; and intentionally failing to appear at the trial of the 16-year-old. In his EEOC charge, Taylor, who is black, said that white troopers had committed similar infractions, but were not fired. In April 1996, the state police provided the EEOC with some of the discipline records for six white officers. Nothing happened for the next 27 months, but then the EEOC asked for detailed information on the six officers, including records of their internal affairs investigations and hearings. The state police refused to turn over certain records, pointing to the Law Enforcement Officers’ Bill of Rights. The EEOC responded by issuing a subpoena and quickly moving in court to have it enforced. After Robinson denied the petition, the EEOC appealed, arguing that the state statute is pre-empted by federal law because it conflicts with Title VII. Arguing for the state police, Deputy Attorney General Rosemary K. Killian said the court should honor the state law because it does nothing more than codify a confidentiality and privacy privilege for law enforcement officers that has long been recognized in federal common law. The law was designed, she said, “to bar invasions of the personal privacy of nonparty officers in federal civil rights litigation.” Since the law is grounded in a federal common law privilege, she said, it is not pre-empted by federal law. McKee found that Title VII gives the EEOC “a broad right of access to relevant evidence.” The U.S. Supreme Court, he said, has cautioned lower courts to be reluctant to recognize or create privileges where Congress has not provided the privilege itself. In the University of Pennsylvania v. EEOC, McKee said university officials asked the high court to recognize a qualified common law privilege against disclosure of confidential peer review materials. The school also invoked the First Amendment to argue for a right of academic freedom. Both arguments failed, McKee said, and the justices refused to limit the EEOC’s access to any of the documents relevant to a tenure decision. McKee said the decision showed that the high court was “especially reluctant to recognize a privilege in an area where it appears that Congress has considered the competing concerns, but has not provided the privilege itself.” Killian argued that University of Pennsylvania was not helpful since academic privilege has no roots in the common law. By contrast, she said, the Law Enforcement Officers’ Bill of Rights is not new and has a statutory basis. She noted that it has been enforced by federal courts in Hatchett v. City of Wilmington and Bailey v. City of Wilmington. The Hatchett court, she said, analogized the state law to a federally recognized “executive privilege.” But McKee said both cases were private civil rights cases in which the plaintiffs were trying to get access to personnel files of nonparty officers and that the 3rd Circuit is “not at all sure” the two were correctly decided. Even if they were, he said, “it is readily apparent that neither case involved an agency of the federal government with broad enforcement powers seeking to enforce a subpoena in the course of an administrative investigation.” McKee said Title VII contains no privacy privilege for nonparty state police officers “and, consequently, courts ought not to recognize such a privilege where Congress has not provided for one.” If the Supreme Court didn’t find a privilege in University of Pennsylvania, he said, “we fail to see how one ought to be recognized here.”

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