Ledford et al v. Idaho Department of Juvenile Corrections et al

Filing 26

MEMORANDUM DECISION AND ORDER Plaintiffs' Motion to Modify Interim Protective Order (Dkt. 19 ) is GRANTED in part and DENIED in part. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RHONDA LEDFORD, an individual;
RAYMON GREGSTON, an individual; JO
MCKINNEY, an individual; SHANE
PENROD, an individual; KIM
MCCORMICK, an individual; BOB
ROBINSON, an individual; and GRACIE
REYNA, an individual; LISA
LITTLEFIELD, an individual; ADDISON
FORDHAM, an individual; TOM DE
KNIF, an individual, FRANK
FARNWORTH, an individual,

Case No. 1:12-cv-00326-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
IDAHO DEPARTMENT OF JUVENILE
CORRECTIONS, an executive department
of the State of Idaho; IDJC DIRECTOR
SHARON HARRIGFELD, in her
individual and official capacities; IDJC
JUVENILE CORRECTIONS CENTERNAMPA SUPERINTENDENT BETTY
GRIMM, in her individual and official
capacities; and DOES 1-20,
Defendants.
INTRODUCTION
The Court has before it Plaintiff’s Motion to Modify Interim Protective Order
(Dkt. 19). For the reasons explained below, the Court will grant, in part, and deny, in
part, the motion.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
This is a whistleblower action brought by seven employees of the Idaho
Department of Juvenile Corrections. They allege that the department retaliated against
them for reporting wrongful conduct. Among other things, plaintiffs allege that the
department: (1) has corrupt hiring practices; (2) discriminates against employees who are
older or who are veterans; (3) permits favored employee to pad their time cards and play
golf while on the clock; and (4) has dangerous security policies and practices.
The parties dispute whether plaintiffs should be allowed to share information
received during discovery with the public and the press. At this point, defendants have
produced documents after plaintiffs agreed, as an interim measure, to keep the documents
confidential until the Court could rule on the issue. The Court entered an interim
protective order consistent with this agreement. See Apr. 19, 2013 Order, Dkt. 18.
Plaintiffs now seek to modify the stipulated protective order so that they can share
discovery with the public. Defendants assert that five broadly defined categories of
documents produced during discovery should remain confidential.
LEGAL STANDARD
Generally, the public is permitted “access to litigation documents and information
produced during discovery.” Phillips ex rel. Estates of Byrd v. General Motors Corp.,
307 F.3d 1206, 1210 (9th Cir. 2002) Under Rule 26, however, “[t]he court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The party opposing

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disclosure has the burden of proving “good cause.” See In re Roman Catholic
Archbishop of Portland, 661 F.3d 417, 424 (9th Cir. 2011) (citation omitted).
If the parties stipulate to a protective order – as they did here – the district court
may enter a protective order without first finding good cause. Id. If a party to this
stipulated protective order later wishes to release protected documents, the party
opposing disclosure (in this case, the Department of Juvenile Corrections) must establish
good cause to continue the protective order. Id.
To determine whether good cause exists, the Court performs a two-step analysis.
First, the Court determines “whether “particularized harm will result from disclosure of
information to the public.” Phillips, 307 F.3d at 1211. “Broad allegations of harm,
unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule
26(c) test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
Instead, the party seeking to prevent disclosure must “allege specific prejudice or harm.”
Id. Second, if the Court finds such particularized harm, it must balance public and
private interests to decide whether protection is necessary. Roman Catholic Archbishop,
661 F.3d at 424. The Ninth Circuit has directed district courts to consider the following
factors when balancing public and private interests:
(1)

whether disclosure will violate any privacy interests;

(2)

whether the information is being sought for a legitimate purpose
or for an improper purpose;

(3)

whether disclosure of the information will cause a party
embarrassment;

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(4)

whether confidentiality is being sought over information
important to public health and safety;

(5)

whether the sharing of information among litigants will promote
fairness and efficiency;

(6)

whether a party benefitting from the order of confidentiality is a
public entity or official; and

(7)

whether the case involves issues important to the public.

Id. n.5.
ANALYSIS
Defendants ask the ask the Court to enter an order preventing plaintiffs from
disclosing the following categories of documents:
(1)

“Files relating to or discussing juvenile offenders”;

(2)

“Any records that contain any identifying information, or any information
that would lead to the identification of any victims or witnesses”;

(3)

“Records relating to safety and security regulations and procedures for
IDJC facilities”;

(4)

Records of the Idaho Department of Juvenile Corrections Custody Review
Board; and

(5)

Personnel records of former and current Idaho Department of Juvenile
Corrections not named as plaintiffs in this matter.

The Court will address each category in turn. First, though, the Court will resolve
defendants’ global argument that all these documents must be deemed confidential to the
extent they are exempt from disclosure under Idaho’s Public Records Act. See Idaho
Code §§ 9-340B, 9-340C.

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A.

The Public Records Act
Idaho’s Public Records Act provides that “every person has a right to examine and

take a copy of any public record of this state . . . .” Idaho Code § 9-338(1). The Act
exempts certain records from disclosure, however, including public employees’ personnel
information, see id § 9-340C, records of juveniles incarcerated by the state, and other
sensitive information contained in records of the Idaho Department of Juvenile
Corrections. See Id. § 9-340B(2)-(4).
Defendants say that “the clear majority” of the documents produced in this
litigation is exempt from disclosure under the Public Records Act. Defendants then argue
that such records obviously cannot be shared with the public within the context of this
litigation.
The problem with this argument is Idaho Code § 9-343(3). It provides that the
Public Records Act does not limit “the availability of records for . . . judicial adjudicatory
proceedings . . . .” Instead, the applicable discovery “laws and rules” govern. Id.;
Accord Op. Idaho Att’y Gen. 95-5 (1995) (“Public records that are exempt from public
disclosure are nevertheless subject to disclosure in a judicial or administrative proceeding
if they are subject to disclosure under the laws or rules of evidence and of discovery
governing those proceedings.”). As applied here, then, defendants must still establish
good cause to justify a protective order.

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B.

Good Cause
1. “Files Relating to or Discussing Juvenile Offenders”
Defendants’ first category of documents – every file “relating to or discussing

juvenile offenders” – is a textbook example of overbreadth. Because the category is so
broadly defined, defendants have failed to make the threshold showing that a specific
harm or prejudice will result if these documents are disclosed to the public. As explained
above, defendants need to identify specific documents or, at a minimum, tightly defined
categories of documents. See, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1139 (9th Cir. 2003) (“A party asserting good cause bears the burden, for each
particular document it seeks to protect, of showing that specific prejudice or harm will
result if no protective order is granted.”) (emphasis added).
The plaintiffs agree that identities of juvenile offenders should remain
confidential. But the Court cannot leap from that stipulation to a finding that defendants
have established a specific prejudice or harm if any document that somehow “relates to”
or “discusses” a juvenile offender is disclosed – even if the juvenile’s name is redacted.
Nonetheless, the Court is not inclined to lift the protective order at this point because it
seems likely that many documents relating to or discussing juvenile offenders should be
protected. The Court will therefore give defendants a short period of time in which they
may (a) meet and confer with plaintiffs and then, if necessary (b) file a more targeted
motion to continue the protective order. Defendants are cautioned that they if they rely
on the same sorts of broadly defined categories they did here, the Court will deny the

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motion. Because the parties are dealing with a known universe of documents they need
provide more specifics – including examples – that will put the Court in a better position
to decide whether documents should remain confidential.
Additionally, to guide the parties’ further meet-and-confer efforts, the Court
generally observes that if a juvenile offender’s record is sealed from disclosure to the
public, it seems likely that that the sealing should remain effective within this litigation.
A juvenile’s record is full or identifying and confidential information that is typically
withheld from the public for the safety and privacy of the juvenile. Also, a juvenile’s
record is sealed to insure the juvenile can be rehabilitated without threat of having
embarrassing or deeply personal information disclosed. It would hinder disclosure,
rehabilitation and counseling services at the department if a juvenile’s record was open to
public view. That said, plaintiffs may be able to point to particular documents (or groups
of documents) within a sealed record that should be released, with redactions. It will be
up to the parties to focus on specifics.
2. “Any IDJC Records that Contain Information that Would Lead to the
Identification of any Victims or Witnesses”
Defendants’ next category of documents – any “IDJC records that contain
confidential information that would lead to the identification of any victims or witnesses”
– is also overbroad and vague.
The Court is aware that Idaho’s Public Records Act uses similar language in
exempting the department’s records from public disclosure. See Idaho Code § 9-340B
(4)(a)(ii). But that broad definition does not work in the context of this lawsuit. Among
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other things, the phrase “victims and witnesses” could include victims and witnesses of
the alleged mismanagement and inappropriate behavior at the IDJC facilities. That
reading is overbroad.
But even assuming defendants were referring to victims and witnesses in the
juvenile cases, the phrase “contain[ing] information that would lead to identification” of
these individuals is overbroad. Plaintiffs might well be guessing at which documents
were subject to any protective order.
Given how broadly this category is defined, the defendants have failed to show
good cause to protect any particular document from disclosure. Once again, though the
Court will allow defendants to file a more targeted motion after informally attempting to
resolve these issues with plaintiffs. Defendants are again cautioned to identify
documents, or categories of documents, more specifically.
3. Records Relating to Safety and Security Regulations and Procedures
Defendants also seek to protect records relating to safety and security regulations
and procedures. Defendants assert that it would be detrimental to the safety of employees
and juveniles at the department if security protocols and safety procedures become public
knowledge.
Once again, the problem is defendants’ failure to identify specific documents or
categories of documents. If they had done that, the parties might well agree on specific
categories of documents that should remain confidential. Plaintiffs concede, as an
example, that they would not object to keeping transport schedules confidential.

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The Court will therefore order that transport schedules not be released to the press
or public. Beyond that, defendants have not shown good cause to effectively seal every
document that “relat[es] to the safety and security regulations and procedures for IDJC
facilities.” As before, the Court will allow defendants an opportunity bring a targeted
motion after meeting and conferring with the plaintiffs.
4. Records of the IDJC Custody Review Board
Defendants next seek to protect “records of the Idaho Department of Juvenile
Corrections Custody Review Board.” Here, the Court finds the Public Records Act
helpful to a certain extent. It provides that “[r]ecords of the custody review board of the
Idaho department of juvenile corrections, including records containing the names,
addresses and written statements of victims and family members of juveniles, shall be
exempt from public disclosure pursuant to section 20-533A, Idaho Code.” I.C. § 9-340B
(3). Idaho Code § 20-533A, in turn, provides that custody review board meetings “shall
be held in accordance with the open meeting law” but that deliberations and decisions
regarding whether hold a juvenile offender in custody past his or her nineteenth birthday
may be made in executive session and, further, that the votes of individual members in
custody decisions will not be disclosed, but the results of any action are subject to
disclosure. Idaho Code § 20-533A(1).
Despite these provisions, the Court does not have a precise or complete
understanding of what specific documents are included in “records of the custody review
board.” It is clear, however, that three categories of documents are included: (1) victim

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statements; (2) family member statements; and (3) members’ individual votes on custody
decisions.
The Court finds good cause to protect these three categories of documents from
public disclosure. Keeping these documents confidential protects juveniles, victims, and
family members from having personal and sensitive information disclosed. It also allows
board members to vote on custody decisions without having their individual votes made
public.
Beyond these categories of documents, it will be up to the parties to educate the
Court as to what documents, or categories of documents, make up the “records” of the
Custody Review Board. The parties are directed to engage in further meet and confer
efforts as to which, if any, of these additional records should be protected. If they
disagree, defendants may bring a targeted motion for a protective order. Also, to the
extent plaintiffs are alleging that the department falsified information that was presented
to the Custody Review Board, it would be helpful to provide documentary examples.
The Court will then be in a position to determine whether such documents should remain
confidential.
5. Personnel Records of Department Employees
Defendants’ next category deals with personnel records of current and past
department employees who are not named plaintiffs. Here, Idaho’s Public Records Act is
instructive. It provides that the public should be able to know the basics about public
employees’ service, such as their “employment history, classification, pay grade and step,

MEMORANDUM DECISION AND ORDER - 10

longevity, gross salary and salary history, status, workplace and employing agency.”
Idaho Code § 9-340C(1). “All other personnel information . . . including, but not limited
to, information regarding sex, race, marital status, birth date, home address and telephone
number, applications, testing and scoring materials, grievances, correspondence and
performance evaluations” is to remain private. Id.
A public employee who is not a party of suit should not have his or her personnel
records disclosed to the public. To do so could lead to embarrassment and scrutiny
without just cause. However, the defendants have defined the category too broadly. It
would require most of the evidence in support of Plaintiffs’ allegations of
mismanagement and unfair treatment to be sealed. Plaintiffs stipulate that certain
personal employment information should be protected, but seek to disclose any evidence
of retaliation, cronyism, unfair and discriminatory treatment, and waste that is relevant to
the public. In light of the nature of the information Plaintiffs seek to disclose, the Court
finds that an appropriate balance between the public interest and employees interests in
privacy can be reached by redacting all employee identifying information from the
personnel records of non-party employees, including the employees name. This will
allow the public to see the evidence, while protecting non-party employees from undue or
misguided scrutiny. Accordingly, personnel records can be disclosed if all identifying
information, including name, sex, race, marital status, birth date, home address and
telephone number is redacted.

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ORDER
IT IS ORDERED THAT:
1.

Plaintiffs’ Motion to Modify Interim Protective Order (Dkt. 19) is

GRANTED in part and DENIED in part. The motion is GRANTED to the extent
plaintiffs seek to disclose personnel records, provided, however, that plaintiffs must
redact those records as outlined above.
2.

The motion is DENIED to the extent plaintiffs seek a blanket order lifting

the Interim Protective Order. Although defendants have, for the most part, failed to show
good cause to continue the protective order, given the sensitive nature of the documents
in this case, the Court will allow defendants an opportunity to bring a more targeted
motion to continue the protective order as to specific documents or categories of
documents.
3.

Within 14 day of this Order, defendants are directed to meet and confer

with plaintiffs to further discuss whether any documents, or categories of documents,
should remain confidential. If the parties are unable to agree to a stipulated protective
order, they shall arrange an informal discovery conference with David Metcalf, the law
clerk assigned to this case. If these efforts prove unsuccessful, defendants may bring a
motion to continue the protective order. Any such motion must be filed within 28 days of
this Order.

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DATED: October 28, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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