Federal Court Recognizes Victim–Advocate Privilege in Sexual-Assault Cases

The majority of states maintain confidentiality—not necessarily privilege—statutes prohibiting sexual-assault advocates from disclosing discussions with their victim–clients absent court order.  There is no federal statutory counterpart, so the question arises whether a federal common-law privilege protects from compelled disclosure a sexual-assault victim’s communications with his or her advocate.

In Doe v. Old Dominion University, 289 F. Supp. 3d 744 (E.D. Va. 2018), the USDC for the Eastern District of Virginia performed a privilege-adoption analysis and recognized a victim–advocate privilege because protecting victim–advocate communications “promotes sufficiently important interests to outweigh the need for probative evidence.”

This new evidentiary privilege is qualified, meaning that the court may order production of victim–advocate communications if their particular relevance to the case “outweighs the public policy in favor of keeping them confidential.”  You may read the full decision here.

Background

In Doe v. ODU, the plaintiff alleged that, on October 11, 2014 while a freshman in the ODU Honors College Program, an on-campus visitor raped her in her college dorm room.  On October 25, 2014, the victim met with Laura Dunn, the founder and then-Executive Director of SurvJustice, an organization that supports sexual-assault victims. Ms. Dunn and the victim held many discussions, including exchanging 150 emails.

The victim–plaintiff brought a federal, Title IX case alleging that ODU failed to prevent the “foreseeable sexual assault.”  ODU moved to compel production of communications between the victim and Ms. Dunn.  The victim–plaintiff argued that the victim–advocate privilege, purportedly arising from Virginia Code § 63.2-104.1, precluded disclosure.  ODU countered that federal law applied, and that federal law recognizes no such privilege. More…

The DOJ Won’t Disclose its Trump Informant? There’s a Privilege for That

On Friday, May 18, 2018, The New York Times and the Washington Post reported that, beginning in July 2016, an FBI informant contacted and met with Trump Campaign officials in a clandestine effort to obtain information about the Campaign’s dealings with Russian operatives.  The news reports state that an American professor teaching in Britain met with George Papadopoulos, a foreign-policy advisor to the Trump Campaign and, later, with Carter Page, an advisor, and Trump Campaign co-chairman Sam Clovis.

Demands for informant’s information immediately arose.  Representative Devin Nunes, Chair of the House Intelligence Committee, has subpoenaed the informant’s information and threatened to hold Attorney General Jeff Sessions in contempt if the DOJ does not comply.  White House Chief of Staff John Kelly similarly requested that the DOJ supply information about the informant and his activities.  And, in an interview published today in The Wall Street Journal, Trump lawyer Rudy Giuliani said that the president needs the informant’s information before he will consider sitting for an interview with Special Counsel Mueller.

And earlier today, President Trump demanded via Twitter that the DOJ look into the FBI’s alleged “infiltration” into the Trump Campaign.

Citing national-security concerns and potential danger to future investigations, the DOJ refuses to disclose the informant’s identity or provide any information about his alleged activities.  If this dispute were to ever make it to court—say, in an action to enforce Nunes’ subpoena—is there an evidentiary privilege that supports the DOJ’s position?

Yes, there is.  The government–informant privilege, which SCOTUS redefined in Roviaro v. United States, 353 U.S. 53 (1957), protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not to the informer, but it protects informers from retaliation or retribution and encourages More…

Deliberative-Process Privilege Protects Agency’s Unapproved Meeting Minutes

A N.J. appellate court issued an interesting opinion for governmental entities responding to public-records requests.  The question was whether a public-records act requires a governmental agency to produce its draft, unapproved meeting minutes.  The N.J. court held that draft minutes are pre-decisional and deliberative, protected by the deliberative-process privilege, and not subject to a public-records request.  Libertarians for Transparent Gov’t v. Gov’t Records Council, 180 A.3d 327 (N.J. Super. 2018).  You may read the decision here.

Deliberative-Process Privilege

The deliberative-process privilege, a sub-category of the global executive privilege, protects from disclosure documents and information reflecting a governmental agency’s deliberations prior to a final decision.  The privilege encourages agency employees to engage in open debate about government policy by precluding their pre-decision comments from public disclosure.  It therefore protects advisory opinions, recommendations, and deliberations.

To invoke the privilege, the governmental agency must show that the requested document is (1) pre-decisional, meaning the agency created it before adopting the corresponding policy or decision; and (2) deliberative, meaning that it contains opinions, recommendations, or advice.

Government Records Council

New Jersey’s Government Records Council, which, ironically, “is committed to making the Open Public Records Act (OPRA) work for the citizens of New Jersey,” and has “worked hard to make government records more easily accessible to the public,” held its monthly meeting on February 23, 2016.  The GRC took minutes and was ready to approve them at the March 2016 meeting, but the GRC cancelled that meeting for lack of a quorum. More…