Final Report and Recommendation — No. 1:22-cv-1653-SCJ-JKL (Dkt. 34, N.D. Ga.)
Summary
This report and recommendation in United States v. Ward, No. 1:22-cv-1653-SCJ-JKL in the Northern District of Georgia, addresses a Justice Department subpoena to Timothy Ward, Commissioner of the Georgia Department of Corrections, issued under the Civil Rights of Institutionalized Persons Act. DOJ opened its investigation in February 2016 into whether Georgia protected lesbian, gay, bisexual, transgender and intersex prisoners from sexual abuse, and on September 14, 2021 expanded it to prisoner-on-prisoner violence at close and medium security levels. The report recommends granting the petition to enforce the subpoena except Request No. 26, which sought COVID-19 vaccination rates and statistics for all staff and prisoners, and denying GDC's motion for a confidentiality protective order. It recommends that GDC produce the documents within 45 days of any order adopting it.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Petitioner,
CIVIL ACTION FILE NO.:
v.
1:22-cv-1653-SCJ-JKL
TIMOTHY WARD, in his official
capacity as Commissioner of the
Georgia Department of Corrections,
Respondent.
FINAL REPORT AND RECOMMENDATION
The United States of America brought this action under the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”), to enforce an
administrative subpoena issued by the United States Department of Justice (“DOJ”)
to Respondent Timothy Ward, the Commissioner of the Georgia Department of
Corrections (“GDC”), seeking documents relating to correctional facilities
throughout Georgia. The case is presently before the Court on the United States’
petition to enforce the subpoena [Doc. 1] and GDC’s motion for entry of a
confidentiality protective order [Doc. 15]. After careful consideration of the record
and the parties’ briefs, and with the benefit of oral argument, it is
RECOMMENDED that the petition be GRANTED IN PART and the motion for
protective order be DENIED.
I. BACKGROUND
CRIPA authorizes DOJ to investigate conditions of confinement in
correctional facilities to ensure compliance with the United States Constitution and
federal law. See 42 U.S.C. § 1997a-1. In February 2016, DOJ opened a CRIPA
investigation into whether the State of Georgia and GDC had failed to protect
lesbian, gay, bisexual, transgender, and intersex (“LGBTI”) inmates from sexual
harassment, sexual abuse, and sexual assault by GDC staff and other prisoners.
(Decl. of Matthew Nickell [Doc. 1-2] ¶ 2.) In a letter dated February 5, 2016, DOJ
advised the State of Georgia about the purpose of that investigation, stating that:
In conducting the investigation, [DOJ] will determine whether there
are systemic violations of the Constitution of the United States.
Specifically, we will investigate whether Georgia adequately protects
transgender and gay prisoners in its custody from sexual abuse, sexual
harassment, and assault by other prisoners and staff.
[Doc. 1-6 at 1.1] GDC participated in this investigation. (See Decl. of Jennifer
Ammons [Doc. 14-2] ¶ 7.)
1
The Court’s citations to the record refer to the page numbers generated by
the Court’s electronic filing system.
2
On September 14, 2021, DOJ notified the State of Georgia that it was
expanding the investigation to determine whether the State had also failed to protect
prisoners housed at close and medium security levels from harm due to prisoner-
on-prisoner violence. (Nickell Decl. ¶ 3.) [Doc. 1-7.] In a notice letter from DOJ
to the State, DOJ stated:
In conducting the investigation, we will determine whether there are
systemic violations of the Constitution of the United States.
Specifically, we will investigate whether GDC is engaging in a pattern
or practice of violating the constitutional rights of convicted prisoners
housed at GDC’s close- and medium-security level facilities, by
failing to protect them from harm due to violence by other prisoners.
Additionally, we will continue to investigate whether GDC adequately
protects [LGBTI] prisoners from sexual harassment, sexual abuse, and
sexual assault by GDC staff and other prisoners, pursuant to our open
investigation, of which we provided notice on February 5, 2016.
[Doc. 1-7 at 1.] According to GDC, this request came as a surprise because, since
2016, DOJ had not requested documents or other information related to the initial
investigation, sought to visit any GDC institution, or indicated that it was concerned
about the safety of LGBTI inmates. (Ammons Decl. ¶ 9.)
On September 24, 2021, DOJ sent a request for documents to counsel for
GDC, seeking information related to prisoner-on-prisoner violence and updated
information about the treatment of and potential harm to LGBTI inmates. (Nickell
Decl. ¶ 6); [Doc. 1-8 (request for documents)]. GDC provided only a “small
3
subset” of the documents requested, and some of those were produced in non-native
format that did not preserve the original files’ metadata. (Nickell Decl. ¶¶ 7-12.)
Over the following months, counsel for DOJ and GDC conferred about the
September 24, 2021 request for documents; however, they reached an impasse on
several issues. (Nickell Decl. ¶ 13.) Most critically, GDC insisted that DOJ sign a
nondisclosure agreement due to the sensitive and confidential nature of documents
requested by DOJ; however, despite their efforts to negotiate a mutually-acceptable
agreement, they were unable to do so. (Id. ¶¶ 14-35; Decl. of Stephen Rogers [Doc.
14-9] ¶¶ 6-23.)
On December 14, 2021, DOJ issued and served a subpoena on GDC,
pursuant to CRIPA, formally demanding that GDC provide access to the
documents sought in the September 24, 2021 request. (See Nickell Decl. ¶¶ 52-
53.) [See also Doc. 1-4, 1-5 (subpoena).] On January 14, 2022, the compliance
date for the subpoena, counsel for GDC emailed a six-page letter and a 34-page
attachment objecting to the subpoena. (See Nickell Decl. ¶¶ 59-60; Rogers Decl. ¶
26); [See also Docs. 1-26 (letter), 1-27 (objections)]. In it, GDC offered to produce
documents pursuant to a stipulated protective order similar to a protective order to
which DOJ had agreed to in a prison conditions case pending in the Northern
4
District of Alabama. (Rogers Decl. ¶ 27.) Counsel for the parties continued to
confer in an attempt to negotiate a resolution to their dispute over GDC’s
objections; however, their discussions again proved fruitless. (See id. ¶¶ 29-42.)
On March 28, 2022, the United States filed the instant action to enforce the
subpoena. [Doc. 1.] On April 26, GDC filed a response in opposition [Doc. 14],
as well as a motion for entry of a confidentiality protective order [Doc. 15]. On
May 3, the United States filed a reply in support of its petition [Doc. 16], and on
May 10, it filed a response in opposition to GDC’s motion for a protective order
[Doc. 17]. On May 24, GDC filed a reply in support of its motion for protective
order. [Doc. 18.] On June 7, at the direction of the Court, the parties filed
supplemental briefing concerning this Court’s authority to enforce the subpoena
under CRIPA’s venue provision, 42 U.S.C. § 1997a-1(b)(2). [Docs. 30, 31.]
Finally, on June 10, 2022, I held a hearing on the pending motions. The motions
are now ripe for review. 2
2
Because the undersigned’s resolution of the pending motions will be
dispositive of the entire matter before the Court, I resolve these motions by report
and recommendation. See EEOC v. Austal USA, LLC, No. MC 17-00006-WS-MU,
2017 WL 4563078, at *1 n.1 (S.D. Ala. Aug. 18, 2017) (collecting cases), report
and recommendation adopted, 2017 WL 4562634 (S.D. Ala. Oct. 12, 2017).
5
II. DISCUSSION
I organize my analysis as follows. First, I address the threshold issues of
whether this Court has subject matter jurisdiction to rule on the motion to enforce
the subpoena and whether venue is appropriate in the Northern District of Georgia.
After answering these questions in the affirmative, I turn to GDC’s objections to
particular requests. Finally, I take up GDC’s motion for a confidentiality protective
order, and conclude that despite the confidential and sensitive nature of the
information that GDC is being asked to produce, a protective order is not warranted
because CRIPA’s default provisions provide adequate protection against misuse
and improper disclosure.
A. This Court’s Authority to Enforce the Subpoena
CRIPA authorizes DOJ to “require by subpoena access to any institution . . .
and to any document, record, material, file, report, memorandum, policy,
procedure, investigation, video or audio recording, or quality assurance report
relating to any institution” that is subject to investigation under CRIPA. 42 U.S.C.
§ 1997a-1(a). The statute further provides that “[i]n the case of contumacy or
failure to obey a subpoena issued under [CRIPA], the United States district court
for the judicial district in which the institution is located may issue an order
requiring compliance.” Id. § 1997a-1(b)(2). The term “institution,” meanwhile, is
6
defined, in part, as “any facility or institution . . . which is owned, operated, or
managed by, or provides services on behalf of any State or political subdivision of
a State; and . . . which is . . . a jail, prison, or other correctional facility. Id. §
1997(1)(A).
The subpoena at issue in this case seeks information about prison facilities.
The United States contends this Court can enforce the subpoena because (1) GDC
has waived any objection to venue by not asserting a defense of improper venue by
motion and by affirmatively seeking entry of a statewide protective order; and (2)
even if it had not waived an objection to venue, all the documents requested in the
subpoena, including those relating to institutions outside the Northern District of
Georgia, relate to GDC as a whole, and GDC has possession and ultimate control
over production of virtually any document sought in the subpoena. [Doc. 29.]
GDC, meanwhile, argues that because the statute refers to “the United States
district court for the judicial district in which the institution is located,” the
enforcement provision of CRIPA contemplates enforcement only on a facility-by-
facility basis, as opposed to a single proceeding to enforce a subpoena for
documents relating to multiple facilities. [See Doc. 30 at 2-5]; see also 42 U.S.C.
§ 1997a-1(b)(2) (emphasis added). In GDC’s view, only the district court where
7
the facility being investigated is located has subject matter jurisdiction to hear an
action to enforce a CRIPA subpoena. [Doc. 30 at 2-5.] Applying this logic to the
subpoena at issue here, GDC contends that its requests fall into one of three
categories: (1) requests that seek systemwide documents that uniformly relate to
all GDC facilities, including those in the Northern District of Georgia; (2) requests
that seek facility-specific information for facilities located in the Northern District
of Georgia; and (3) requests for facility-specific documents that relate to facilities
outside the Northern District of Georgia. [Id. at 6.] GDC concedes this Court may
properly rule on the enforceability of the first two categories of requests because
they relate to institutions in this District. [Id. at 6-7.] But as to the third, GDC
argues that this Court lacks subject matter jurisdiction to enforce the subpoena in
light of the language in the statute. [Id. at 7-10.]
The United States has the better of the arguments. First of all, this Court has
subject matter jurisdiction over this case under 28 U.S.C. § 1331, which grants the
Court subject matter jurisdiction over all cases arising under a law of the United
States, and 28 U.S.C. § 1345, which grants federal courts subject matter original
jurisdiction over “proceedings commenced by the United States,” “except as
8
otherwise provided by Act of Congress.”3 United States v. Hill, 694 F.2d 258, 269
(D.C. Cir. 1982) (identifying 28 U.S.C. §§ 1331 and 1345 as statutes providing
subject matter jurisdiction for proceedings to enforce administrative subpoenas
issued by Department of Energy). Obviously, the case at bar is a proceeding
commenced by the United States, and it arises under an act of Congress, namely
CRIPA.
To the extent that GDC contends that Congress intended to specifically limit
subject matter jurisdiction to a particular subset of district courts, the undersigned
disagrees. “To determine whether Congress intended to repeal a district court’s
Section 1345 jurisdiction over a particular case or controversy, the court first
analyzes the express terms of the statute itself, here [§ 1997a-1(b)(2)] and then
turns to the statute’s legislative history.” United States ex rel. Borges v. Doctor’s
Care Med. Ctr., Inc., No. 01-8112-CIV, 2007 WL 9702639, at *7 (S.D. Fla. Jan.
29, 2007); see also Colo. River Water Conservation Dist. v. United States, 424 U.S.
3
The United States also argues that this Court has subject matter jurisdiction
under 28 U.S.C. § 1343, which provides that “[t]he district courts shall have
original jurisdiction of any civil action authorized by law to be commenced by any
person” to address the possible deprivation of constitutional rights under color of
state law. The former Fifth Circuit held, however, that the United States is not a
“person” under that statute. United States v. City of Jackson, Miss., 318 F.2d 1, 8
(5th Cir. 1963). Section 1343, therefore, does not apply here.
9
800, 807-09 (1976); United States v. Puerto Rico, 721 F.2d 832, 834-38 (1st Cir.
1983); see also Wright & Miller, 14 Fed. Prac. & Proc. Juris. § 3651 (4th ed.)
(“[T]he statutory exception must be clear before a federal court will deny
jurisdiction under Section 1345.”) (footnote omitted). “If neither indicates an intent
to repeal [the district court’s jurisdiction], the court asks whether (1) the subject
statute is in ‘irreconcilable conflict’ with 28 U.S.C. § 1345, and (2) whether the
statute ‘covers the whole subject of 28 U.S.C. § 1345’s grant of jurisdiction over
the particular case and is clearly intended as a substitute for 28 U.S.C. § 1345
jurisdiction.’” Ex rel. Borges, 2007 WL 9702639, at *7 (cleaned up); see also
Wright & Miller, 14 Fed. Prac. & Proc. Juris. § 3651 (4th ed.) (“Courts have found
a repeal when the specialized statute contains a unified, integrated, self-contained
grant of jurisdiction that can be read as setting out a complete scheme for federal
jurisdiction over cases in which a particular agency is a plaintiff, and when the
later-enacted statute shows an irreconcilable conflict with Section 1345.”
(quotation marks and footnotes omitted)).
Applying those principles here, § 1997a-1(b)(2) does not clearly show that
Congress intended to supplant the general grant of subject matter jurisdiction when
enacting CRIPA. Congress did not use language that clearly expressed that it
10
intended to narrow a federal court’s subject matter jurisdiction in cases such as the
one at bar, and nothing in the legislative history suggests that Congress meant to
do so either. See, e.g., 155 Cong. Rec. S10852-01, S10854 (Oct. 28, 2009). Nor
can it reasonably be said that any irreconcilable conflict exists between § 1997a-
1(b)(2) and § 1345; indeed, any potential conflict can be avoided by reading
§ 1997a-1(b)(2) as a venue statute. The Second Circuit’s decision in United States
ex rel. Thistlwaite v. Dowty Woodville Polymer, Ltd., 110 F.3d 861 (2d Cir. 1997),
is instructive in this regard. In that case, the court addressed a provision of the
False Claims Act, 31 U.S.C. § 3732(a), which states that “any action . . . may be
brought in any judicial district in which the defendant, or in the case of multiple
defendants, any one defendant can be found . . . .” Id. at 866. The court reasoned
that the statute does not speak in terms of jurisdiction, and distinguished it from
other federal statutes that explicitly referred to “jurisdiction.” Id. The court also
found nothing in the statute’s legislative history that signaled Congress’s intent to
read the statute as limiting a district court’s subject matter jurisdiction. Id. at 866-
68. Based upon the foregoing, the court found “no basis . . . for reading into that
11
section a limitation on the district court’s subject matter jurisdiction.” Id. at 868.
The same reasoning applies to the Court’s subject matter jurisdiction in this case.4
The nature of CRIPA investigations lends further support to the conclusion
that Congress did not intend for § 1997a-1(b)(2) to limit a district court’s subject
matter jurisdiction. Critically, § 1997a-1(b)(2) leaves unaddressed situations like
the one at bar where DOJ seeks materials relating to multiple institutions in a single
4
GDC relies on N.L.R.B. v. Cooper Tire & Rubber Co., 438 F.3d 1198, 1200
(D.C. Cir. 2006), to support its position that 42 U.S.C. § 1997a-1(b)(2) confers
subject matter jurisdiction for actions to enforce CRIPA administrative subpoenas.
In Cooper Tire, the D.C. Circuit dismissed an action that the National Labor
Relations Board (“NLRB”) brought in the District of Columbia to enforce an
administrative subpoena relating to an investigation pending in Mississippi. The
court reasoned that the National Labor Relations Act (“NLRA”) permitted the
NLRB to apply to enforce a subpoena only in the district where the investigation
was “carried on,” and, therefore, the U.S. District Court for the District of Columbia
“lacked subject matter jurisdiction to enforce the subpoenas” at issue. Id. at 1204.
Cooper Tire did not address the interplay between § 1345 and the relevant
provisions of the NLRA. Moreover, the statute at issue in Cooper Tire, 29 U.S.C.
§ 161(2), referred explicitly to “jurisdiction,” providing that “any district court of
the United States . . . within the jurisdiction of which the inquiry is carried on . . .
shall have jurisdiction” to enforce the subpoena) (emphasis added). Section
1997a-1(b)(2) makes no mention of the word “jurisdiction.”
GDC also cites cases arising under the Federal Arbitration Act (“FAA”);
however, it is well-settled that the FAA “does not create any independent federal-
question jurisdiction under 28 U.S.C. § 1331 [] or otherwise.” Moses H. Cone
Mem’l Hops. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983). In addition,
none of the arbitration cases that GDC cites involved an action brought by the
United States. Those arbitration cases are, therefore, inapposite.
12
subpoena as part of a state-wide investigation. In addition, forcing DOJ and the
targets of its investigation to litigate issues in a piecemeal, district-by-district
fashion could result in inconsistent outcomes, encourage forum shopping, tax
precious resources for all parties, and disrupt the orderly flow of a state-wide
investigation—all of which would frustrate CRIPA’s goal of providing DOJ
subpoena power to collect information to aid in its investigations of correctional
institutions.
For all these reasons, in the Court’s view, CRIPA’s enforcement provision
speaks to venue, not subject matter jurisdiction. See 42 U.S.C. § 1997a-1(b)(2);
see also United States v. Hankins, 581 F.2d 431, 438 n.11 (5th Cir. 1978) (holding
that District Court had subject matter jurisdiction over petitions to enforce IRS
summonses under 26 U.S.C. § 7402(a) and 28 U.S.C. § 1345, and that 26 U.S.C. §
7402(b), which grants “jurisdiction” to “the district court of the United States for
the district in which such person resides or may be found” governs venue); see also
Hill, 694 F.2d at 267-68 (“The exception to section 1345 is interpreted narrowly,
and the section’s language evinces Congress’ intent to confer jurisdiction over any
form of action that the United States might initiate.”).
13
Having concluded that § 1997a-1(b)(2) pertains to venue, the next issue is
whether venue is appropriate in this forum. On this point, the Court again agrees
with the United States. Even if GDC had a viable argument that the appropriate
venue to enforce portions of the subpoena lies in the Middle or Southern Districts
of Georgia, GDC has waived the issue. Federal Rule of Civil Procedure Rule
12(h)(1) provides that, in general, a party waives a defense to improper venue by
not raising the issue in a motion or responsive pleading.5 In its response, GDC did
not assert lack of venue as a defense, nor did it move to dismiss for improper venue.
Rather, GDC’s only mention of venue appears in a footnote in its response brief,
which states that GDC does not “waive any objection to the venue of this or any
other action or proceeding seeking an interview, site visit, or document production
in a judicial district where the interviewee, facility, or documentation is not
physically located or where any inconvenience exists to Commissioner Ward, GDC,
or any other person or entity.” [Doc. 14 at 10 n.3.] While this language seeks to
reserve the right to make an objection, GDC did not actually assert any substantive
5
Rule 81(a)(5) provides that the Federal Rules of Civil Procedure “apply to
proceedings to compel testimony or the production of documents through a
subpoena issued by a United States officer or agency under a federal statute,”
except in specific circumstances not applicable here. As a result, Rule 12 applies
to this action.
14
objection to venue in its response. Thus, it has waived any such objection under
Rule 12(h)(1). In addition, GDC has affirmatively sought the entry of a protective
order that would apply to the production in its entirety—that is, it sought statewide
application of its protective order; thus, GDC has availed itself of this Court’s
authority to issue an order that is inconsistent with its view that venue does not lie
here. [Doc. 15.]
In sum, the Court finds that this Court has subject matter jurisdiction over
this case and that venue is appropriate in this District.
B. The Enforceability of the Subpoena
The next issue is the enforceability of the subpoena. GDC contends that the
petition should be denied because the subpoena seeks information that is irrelevant
to DOJ’s pending investigation of Georgia’s penal institutions and because GDC
has already produced many documents within its possession. [Doc. 14 at 19, 35-
41, 41-42.]
In United States v. Morton Salt Co., the Supreme Court recognized that
agencies of the United States have broad investigatory powers:
Because judicial power is reluctant if not unable to summon evidence
until it is shown to be relevant to issues in litigation, it does not follow
that an administrative agency charged with seeing that the laws are
enforced may not have and exercise powers of original inquiry. It has
a power of inquisition, if one chooses to call it that, which is not
15
derived from the judicial function. It is more analogous to the Grand
Jury, which does not depend on a case or controversy for power to get
evidence but can investigate merely on suspicion that the law is being
violated, or even just because it wants assurance that it is not. When
investigative and accusatory duties are delegated by statute to an
administrative body, it, too, may take steps to inform itself as to
whether there is probable violation of the law.
338 U.S. 632, 642-43 (1950). As a result, “[a] district court’s role in a proceeding
to enforce an administrative subpoena is limited.” E.E.O.C. v. Tire Kingdom, Inc.,
80 F.3d 449, 450 (11th Cir. 1996) (citing E.E.O.C. v. Kloster Cruise Ltd., 939 F.2d
920, 922 (11th Cir. 1991)).
To determine whether an administrative subpoena is enforceable, courts
consider “(1) whether the administrative investigation is within the agency’s
authority, (2) whether the agency’s demand is too indefinite, and (3) whether the
information sought is reasonably relevant.” Tire Kingdom, 80 F.3d at 450; McLane
Co. v. E.E.O.C., __ U.S. __, 137 S. Ct. 1159, 1165 (2017), as revised (Apr. 3, 2017)
(“If the charge is proper and the material requested is relevant, the district court
should enforce the subpoena unless the [recipient] establishes that the subpoena is
‘too indefinite,’ has been issued for an ‘illegitimate purpose,” or is unduly
burdensome.”). “So long as the agency makes a plausible argument in support of
its assertion of jurisdiction, a district court must enforce the subpoena if the
16
information sought there is not plainly incompetent or irrelevant to any lawful
purpose of the agency.” Kloster, 939 F.2d at 922 (citations omitted).
In its briefs, GDC cites a slightly different, four-factor test set forth in the
Supreme Court’s decision in Powell v. United States, 379 U.S. 48, 51 (1964). [See
Doc. 14 at 15.] In Powell, the government sued a taxpayer to enforce an IRS
summons for tax records that the taxpayer refused to produce. 379 U.S. at 51. The
principal issue in the case was whether the IRS was required to establish probable
cause that tax fraud occurred in order to support a summons for the individual’s tax
documents. The relevant provision of the Internal Revenue Code authorizing the
issuance of summons provided as follows:
No taxpayer shall be subjected to unnecessary examination or
investigations, and only one inspection of a taxpayer’s books of
account shall be made for each taxable year unless the taxpayer
requests otherwise or unless the Secretary or his delegate, after
investigation, notifies the taxpayer in writing that an additional
inspection is necessary.
Id. at 53 (citing 26 U.S.C. § 7605(b)).6 The Court held that the statute did not
impose a probable cause standard, reasoning that nothing in the legislative history
of the statute suggested such a requirement was intended. Id. at 56. But, focusing
6
Since Powell came down, § 7605(b) has been amended; however, for
present purposes, those amendments are inconsequential.
17
on the first clause of § 7605(b)—that “no taxpayer shall be subjected to
unnecessary examination or investigations”—the Court explained that the language
“appear[s] to require that the information sought is not already within the
Commissioner’s possession” but that “its primary purpose was no more than to
emphasize the responsibility of agents to exercise prudent judgment in wielding the
extensive powers granted to them by the Internal Revenue Code.” Id. The Court
then went on to identify four factors the Commissioner of Internal Revenue must
satisfy to enforce an IRS summons:
He must show [1] that the investigation will be conducted pursuant to
a legitimate purpose, [2] that the inquiry may be relevant to the
purpose, [3] that the information sought is not already within the [IRS]
Commissioner’s possession, and [4] that the administrative steps
required by the [Internal Revenue] Code have been followed—in
particular, that the ‘Secretary or his delegate,’ after investigation, has
determined the further examination to be necessary and has notified
the taxpayer in writing to that effect.
Id. at 57-58.
The Powell criteria have been applied to other subpoena enforcement
actions, especially SEC subpoenas. See SEC v. Marin, 982 F.3d 1341, 1352 (11th
Cir. 2020) (collecting cases). But it is clear that Powell does not apply to all actions
to enforce administrative subpoenas. Notably, the Fifth Circuit has cautioned
against blindly applying Powell in all actions, explaining that “principles
18
established in tax cases, and most notably in [Powell] cannot be indiscriminately
applied to other agencies.” In re E.E.O.C., 709 F.2d 392, 398 n.2 (5th Cir. 1983).
In the Eleventh Circuit, meanwhile, courts have applied the seemingly less onerous
three-part standard discussed above. See, e.g., Inspector Gen. of U.S. Dep’t of
Agric. v. Glenn, 122 F.3d 1007, 1009 (11th Cir. 1997) (subpoena issued under
Inspector General Act of 1978, 5 U.S.C. § App’x 3 § 6); Tire Kingdom, Inc., 80
F.3d at 450 (EEOC subpoena); United States v. Fla. Azalea Specialists, 19 F.3d
620, 623 (11th Cir. 1994) (administrative subpoena issued pursuant to Immigration
Reform and Control Act of 1986, 8 U.S.C. § 1324b); Fed. Election Comm’n v. Fla.
for Kennedy Comm., 681 F.2d 1281, 1284 (11th Cir. 1982) (Federal Election
Commission subpoena); N.L.R.B. v. Lear Corp. EEDS & Interiors, No. CV 16-
00061-WS-N, 2016 WL 11397056, at *4 (S.D. Ala. May 10, 2016) (NLRB
administrative subpoenas), report and recommendation adopted, No. CV 16-0061-
WS-N, 2016 WL 3383284 (S.D. Ala. June 17, 2016); Fed. Trade Comm’n v.
LabMD, Inc., No. 1:12-CV-3005-WSD, 2012 WL 13104826, at *3 (N.D. Ga. Nov.
26, 2012) (FTC administrative subpoena).
The parties do not cite, and the Court has not found, any authority applying
Powell in a CRIPA subpoena enforcement action. Nor does either party provide a
19
fulsome discussion about which standard applies here. But at oral argument, the
parties appeared to agree that for present purposes, it is immaterial which standard
applies because the determinative issue, which is common to both tests, is whether
specific provisions of the subpoena seek information that is irrelevant to the CRIPA
investigation.7 Accordingly, the analysis that follows focuses on the relevancy of
the requests—a factor common to whichever standard might apply.
The Court therefore turns next to the specific objections raised by GDC to
requests. The thrust of GDC’s arguments is that the United States impermissibly
7
GDC concedes that the first and fourth Powell factors—i.e., that the
investigation is being conducted pursuant to a legitimate purpose and that DOJ
complied with the necessary administrative steps—are not at issue. Citing the third
Powell factor—whether the information sought is already in the government’s
possession—GDC argues that DOJ “possesses no authority to subpoena”
documents that GDC has already produced. [Doc. 14 at 41-42.] At oral argument,
counsel for the United States stated that it was not seeking re-production of
documents that it had already obtained informally from GDC, so this issue is moot.
In any event, even if the subpoena facially seeks information that GDC already
provided, it appears that there are far more documents that GDC has refused to
produce. Thus, the third Powell factor—assuming it even applies—weighs in favor
of enforcing the subpoena. See Azis v. U.S. I.R.S., 522 F. App’x 770, 775-76 (11th
Cir. 2013) (upholding grant of petition to enforce IRS summonses where “at least
some of the information requested . . . was not already in the possession of the
IRS”); S.E.C. v. Horowitz & Ullman P.C., No. C80-590A, 1982 WL 1576, at *13
(N.D. Ga. Mar. 4, 1982) (Forrester, J.) (finding SEC “subpoenas as a whole [were]
not harassing” even though some documents were already in the government’s
possession).
20
seeks information that is immaterial to the pending investigation and, therefore, the
Court should narrow the scope of the requests accordingly. The requests at issue
include: requests for COVID-19 vaccination rates for prison staff and inmates;
various categories of information pertaining to all institutions statewide;
information about every employee who left GDC since September 2019; data from
“SCRIBE,” GDC’s internal recordkeeping system; and a full spectrum of prisoner
handbooks, orientation materials, and educational materials. GDC also complains
that the United States improperly insists that information be produced in a technical
format that is unduly burdensome. I take up each of these topics in turn.
1. Request for COVID-19 Vaccination Rates
Request No. 26 seeks “COVID-19 vaccination rates and statistics for all
Staff and prisoners (specifying whether the rates reflect full or partial vaccination).”
[Doc. 1-5 at 8.] GDC contends that this request is not related to purpose of DOJ’s
investigation into either the protection of LGBTI inmates or the protection of
inmates at close and medium security facilities from violence. [Doc. 14 at 37.] At
oral argument, counsel for the United States stated that the United States would not
persist in its request for vaccination rate information. Because the United States
has abandoned this request, GDC should not be ordered to produce information
responsive to it.
21
2. Requests for Information Related to “All” Facilities
GDC argues that Requests 8, 9, 16, 17, and 18 seek statewide documents
beyond the scope of the investigations into the protection of LGBTI inmates or
inmates at close and medium security facilities:
8. Number of budgeted security positions at each facility, broken
down by title, salary range for each position title, and overall security
staff budget per facility, for the current fiscal year and previous fiscal
year.
9. A list of, or documentation identifying, all security, medical, mental
health, or supervisory Staff who have left employment with GDC in
the past year, for any reason, including each person’s name, title, date
their employment began with GDC, date their employment ended, and
reason for departure.
***
16. Incident reports; any supplemental reports; any related
investigation files and reports; and any related video footage, witness
statements, and other supporting materials related to any prisoner
housed at any GDC facility, from September 1, 2019 to the present for
all of the following:
a. Homicides and suspected homicides;
b. Alleged sexual abuse;
c. Calls to GDC Special Operations, including any CERT Team
or Tactical Squad calls, to respond to a riot, escape, or
disturbance; and
d. Calls to outside law enforcement.
22
For all of the requested incident reports and investigation files, please
identify any prisoners involved who GDC has identified as LGBTI or
[gender-nonconforming (“GNC”)].
17. All autopsy or coroners’ records, or all records determining a
prisoner’s cause of death, for all deaths reported in Document Request
1[6].a., above.
18. Total number of prisoner-on-prisoner homicides and suspected
homicides throughout GDC, listed by year and by facility, from 2011
to the present.
[Doc. 1-5 at 5-6.] GDC argues that these requests “appear irrelevant” because they
ask information for all GDC facilities without limitation, even though—according
to GDC—DOJ itself represented to GDC that it was investigating the constitutional
rights of inmates housed at GDC’s close and medium security level facilities. [Doc.
14 at 36-37; see also Doc. 1-7 at 1 (Sept. 14, 2021 letter describing scope of CRIPA
investigation).] In response, the United States contends that conditions at GDC’s
close and medium security level facilities are only a part of the investigation, which
also extends “into whether GDC was protecting [LGBTI] prisoners from sexual
harassment and abuse” regardless of the security level of any particular facility.
[Doc. 16 at 14.]
“The measure of relevance used in subpoena enforcement actions is quite
broad.” Fla. Azalea, 19 F.3d at 624; see also Marin, 982 F.3d at 1355. A request
“will survive a relevancy challenge so long as it ‘touches a matter under
23
investigation.’” Marin, 982 F.3d at 1355 (quoting Sandsend Fin. Consultants, Ltd.
v. Fed. Home Loan Bank Bd., 878 F.2d 875, 882 (5th Cir. 1989)). Because the
scope of DOJ’s investigation into the protection of LGBTI inmates is not limited
to close and medium security facilities, and because each of the foregoing requests
can reasonably be understood to be relevant to the investigation into treatment of
LGBTI inmates, the petition should be GRANTED as to these requests.
3. Requests for Employee Separation Information and GDC
SCRIBE Reports
GDC next object to Requests 9 and 10, seeking internal employee and inmate
records. Request No. 9 seeks:
A list of, or documentation identifying, all security, medical, mental
health, or supervisory Staff who have left employment with GDC in
the past year, for any reason, including each person’s name, title, date
their employment began with GDC, date their employment ended, and
reason for departure.
[Doc. 1-5 at 5.] Request No. 10 seeks “Copies of systemwide GDC Scribe reports
covering all dates from September 1, 2019 to the present.” [Id.]
GDC objects that the request for information about terminated staff is unduly
burdensome and overbroad because GDC loses around 2,000 employees a year for
various reasons, that about 400 of those separations are involuntary, and of that
number, GDC estimates only one GDC employee has been fired in the past two
24
years for violating GDC’s Prison Rape Elimination Act policies. [Doc. 14 at 40
(citing Decl. of Cliff Hogan [Doc. 14-4] ¶¶ 5-6).] Further, GDC asserts that it
would take nearly thirty minutes per employee to search for the information that
DOJ requested—meaning that it would take nearly 1,000 hours to compile
information that appears to have no relevance to DOJ’s investigation. [Id. (citing
Hogan Decl. ¶ 7).]
As for the request for reports from SCRIBE, GDC’s internal database, GDC
argues that most SCRIBE reports pertain to topics that bear no relevance to DOJ’s
investigation. (See Decl. of Angela Ivester [Doc. 14-7] ¶ 3.) For instance, GDC
points out that SCRIBE contains information about individuals who are no longer
in custody, victim disbursements from inmate GDC accounts, inmate meals and
dietary restrictions, information about inmate medical care, and other subjects not
related to offender-on-offender violence or sexual violence against LGBTI
offenders. [Doc. 14 at 39 (citing Ivester Decl. ¶ 11).] In addition, GDC contends
that to compile and produce the SCRIBE reports that DOJ has requested, it would
need to manually generate a report for each day for the period requested (i.e., a
report for each day between September 1, 2019 and December 14, 2021, for a total
of 835 days); and that as a result, GDC estimates that it would take 2,000 hours to
25
retrieve, download, and produce the requested SCRIBE reports. [Id. at 39-40]; (see
also Ivester Decl. ¶ 10).
The United States argues that information is relevant. It contends that
information about staff termination is relevant because DOJ’s investigation into the
failure to protect inmates includes the effects of staffing shortages on inmate
protection. [Doc. 16 at 13; see also Doc. 1-1 at 16.] Likewise, it contends that
SCRIBE reports about subjects other than prisoner violence, such as medical care,
transportation, and scheduling, are relevant because they may relate to treatment of
injuries resulting from violence. [Doc. 16 at 12-13.] The United States also argues
that GDC can avoid investing thousands of hours compiling records of employee
terminations and SCRIBE reports simply by providing DOJ with access to the
records. [Id. at 13 n.11.]
Because of the broad contours of relevance at play, the Court finds the
United States’ argument persuasive. Moreover, GDC’s concerns as to the burden
of sifting through and compiling SCRIBE records are alleviated if DOJ is permitted
to simply have access to the information. Accordingly, the petition should be
GRANTED as to these requests.
26
4. Request for Prisoner Handbooks, Orientation Materials,
Etc.
Request No. 4 seeks:
Prisoner handbook, orientation materials, prisoner education
materials, posters, notices, handouts, brochures, and prisoner video
presentations, including any materials informing prisoners of Policies
for filing grievances, reporting [Prison Rape Elimination Act]
allegations, or reporting prisoner-on-prisoner violence or fears or
threats thereof.
[Doc. 1-5 at 5.] GDC argues that this request is overbroad because it seeks all
posters, notices, handouts, or brochures provided to inmates, regardless of content.
[Doc. 14 at 38.] It also explains that it has produced 80 pages of documents
responsive to this request in connection with DOJ’s informal document request in
October and November 2021. [Id.; see also Doc. 1-28 at 8.] The United States
does not explicitly respond to this argument, except to argue generally that “GDC
cannot withhold responsive documents based on alleged overbreadth, burden, or
disproportionality” because those “discovery-type objections” are inapplicable in a
proceeding to enforce an administrative subpoena. [Doc. 1-1 at 19-20.]
Contrary to the United States’ argument, this Court is not powerless to limit
the scope of a particular request in an administrative subpoena, especially when it
clearly seeks information that bears little, if any, relevance to a pending
investigation. See EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 761-62
27
(11th Cir. 2014) (affirming district court order narrowing scope of EEOC subpoena
that sought company-wide information irrelevant to the investigation). Even so,
the Court is mindful that CRIPA broadly authorizes DOJ to subpoena “any
document . . . relating to any institution that is the subject of an investigation . . . .”
42 U.S.C. § 1997a-1(a) (emphasis added). Even though this request is broad, it still
seeks information that is relevant to the pending investigation. Importantly, the
final clause of Request No. 4, which refers to “materials informing prisoners of
Policies for filing grievances, reporting [Prison Rape Elimination Act] allegations,
or reporting prisoner-on-prisoner violence or fears or threats thereof,” leaves no
doubt that this request is aimed at understanding what inmates are told (or are not
told) about their rights to challenge acts or threats of violence. This information
falls squarely within the scope of the pending investigation. Therefore, the petition
should be GRANTED as to Request No. 4.8
8
The Court notes that it appears the parties have not conferred about the
scope of Request No. 4. It seems highly unlikely that DOJ really wants GDC to
produce every single notice, poster, piece of education material, etc. that is
furnished to inmates. To use an extreme example, “prisoner education materials”
could be read to include school textbooks that are located within prisons—materials
that obviously have no bearing on DOJ’s investigation into prison conditions. The
undersigned is confident that counsel for the parties can confer with success about
the appropriate scope of this request.
28
5. Technical Specifications of Production
Finally, in a letter dated October 27, 2021, DOJ requested that GDC produce
information according to certain technical specifications and protocols. [Doc. 14-
9 at 40-48.] GDC argues that these specifications are “arbitrary and burdensome”
and “do not represent industry standard.” [Doc. 14 at 41.] The subpoena, however,
simply requests that GDC produce “documents and information . . . in a searchable
electronic format.” [Doc. 1-5 at 2.] The technical specifications in the October 27
letter are not part of the subpoena itself. Moreover, at oral argument, counsel for
the United States stated that DOJ is willing to work with GDC concerning the
format of a production. Accordingly, the Court cannot find a basis to quash the
subpoena based on DOJ’s October 27 letter. 9
Having dispensed with GDC’s specific objections, the Court now turns to its
motion for protective order and its objections to producing sensitive, confidential
information.
C. Motion for Protective Order
“District courts have discretion to enter a protective order in conjunction
with enforcing an administrative subpoena.” Lear Corp. EEDS & Interiors, 2016
9
As with Request 4, it also appears that this is a matter about which the
parties must still confer.
29
WL 11397056, at *5 (collecting cases). The party seeking the protective order must
establish “good cause,” that is, “a sound basis or legitimate need to take judicial
action.” Id. Factors relevant to this determination include “[1] the severity and the
likelihood of the perceived harm; [2] the precision with which the order is drawn;
[3] the availability of a less onerous alternative; and [4] the duration of the order.”
Id. (quoting In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)).
The United States argues that a protective order is not necessary or
appropriate in this case because “existing laws and regulations provide adequate
protections for sensitive information.” [Doc. 17 at 3.] Specifically, CRIPA itself
provides that information DOJ obtains via an administrative subpoena:
(1) may not be used for any purpose other than to protect the rights,
privileges, or immunities secured or protected by the Constitution or
laws of the United States of persons who reside, have resided, or will
reside in an institution;
(2) may not be transmitted by or within the Department of Justice for
any purpose other than to protect the rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States
of persons who reside, have resided, or will reside in an institution;
and
(3) shall be redacted, obscured, or otherwise altered if used in any
publicly available manner so as to prevent the disclosure of any
personally identifiable information.
30
42 U.S.C. § 1997a-1(c); [Doc. 1-1 at 10; Doc. 17 at 3-4]. The United States further
contends that other provisions of federal law, including the Freedom of Information
Act, 5 U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a, and DOJ’s “Touhy”
regulations, 28 C.F.R. §§ 16.21, et seq., protect against the misuse or improper
disclosure of sensitive information. [Doc. 17 at 4.] Likewise, regulations require
DOJ to maintain and destroy identifying health information and limit the disclosure
and use of such information. [Id. (citing 42 C.F.R. §§ 2.16, 2.53(f)).]
GDC nevertheless insists that it needs a protective order that, among other
things, limits disclosure of certain information on an “attorneys’-eyes-only”
basis—that is, prohibits the information from being viewed by anyone other than
counsel without the prior permission of GDC. GDC argues that such a restriction
is necessary to ensure that its sensitive and confidential information is protected
against disclosure (inadvertent or otherwise). [Doc. 14 at 18-32.] GDC gives
numerous examples of information that, if disclosed to the wrong person, could
result in deadly or costly consequences, including information about GDC’s
facilities and security protocols, personal information about offenders, law
enforcement investigations, and personal information about current and former
staff members. [See id.]
31
GDC is understandably concerned about protecting nonpublic information
about prison facilities, staffing, prosecutions, investigations, and the like. But it is
also compelling that Congress, when it enacted CRIPA, chose to include specific
protections for information that DOJ receives by way of administrative subpoena.
Indeed, CRIPA explicitly prohibits DOJ from using any information obtained via
subpoena for any purpose other than to protect the rights of inmates and bars DOJ
from even transmitting the information within DOJ itself for any other purpose. 42
U.S.C. § 1997a-1(c)(1)-(2). While the Court appreciates GDC’s emphasis on
making sure that confidential, sensitive information is not disclosed or used for any
purpose other than DOJ’s investigation, the examples that it gives are hypothetical,
and it has offered no reason or evidence that would lead the undersigned to believe
DOJ intends to disclose the information in a manner that risks the security of GDC
facilities, employees, or inmates.
GDC relies on the Eleventh Circuit’s decision in In re Secretary, Florida
Department of Corrections, 2020 WL 1933170 (11th Cir. Mar. 30, 2020), to
support its position that courts that order disclosure of information about penal
institutions “routinely issue protective orders limiting disclosure to an attorneys’-
eyes-only basis.” [Doc. 14 at 22; see also Doc. 15 at 3.] In re Secretary is
32
inapposite, however. That case was a class action brought by former and current
inmates incarcerated in Florida correctional facilities alleging that the conditions
of their imprisonment constituted cruel and unusual punishment in violation of the
United States Constitution. 2020 WL 1933170 at *1. During discovery, class
counsel and counsel for the Florida Department of Corrections (“FDC”) attempted
to negotiate a confidentiality order regarding the production of information about
the prisons, but reached an impasse because the state wished to designate certain
sensitive prison information as “Attorneys’ Eyes Only.” Id. The district court
rejected the request, and entered a confidentiality order that “would have enabled
the named plaintiffs—currently incarcerated inmates—along with several other
groups of individuals to access all discovery without FDC permission.” Id. The
FDC filed a petition for a writ of mandamus with the Eleventh Circuit Court of
Appeals, which was granted. Id. at *2-3. The Circuit Court explained that it
granted relief out of concern that granting access to sensitive information to
currently incarcerated prisoners—including inmates convicted of “murder in the
first degree, armed robbery, identity fraud, forgery, and fleeing or attempting to
elude law enforcement,” presented “a clear and obvious security risk.” Id. at *2.
The court also found that the relief requested by FDC “was quite modest” because
33
it sought an “‘Attorney’s Eyes Only’ designation only for a small subset of the
prison information which would impair the security and safety functions of the
prison if disclosed other than to plaintiffs’ counsel.” Id.
The concerns that underpin the decision in In re Secretary are much less
pronounced here because this is an action to enforce an administrative subpoena by
DOJ, and not a pending action by currently incarcerated prisoners. In a civil case,
a party is typically entitled to discovery produced to his or her counsel because it
is the client’s case. But here, DOJ does not represent current or former inmates,
and there is no reason to believe that DOJ would furnish sensitive information
obtained via the subpoena to incarcerated individuals. 10
10
The other cases that GDC cites all involve civil or criminal proceedings
where, absent a protective order, there would have been no guardrails against
dissemination of sensitive information. Specifically, Beebe v. Andrews, No. 1:21-
CV-00012-SLG, 2022 WL 621782, at *2 (D. Alaska Mar. 3, 2022); Avery v.
Wellpath, LLC, No. 2:20-CV-00428-NT, 2021 WL 5500479, at *2 (D. Me. Nov.
21, 2021); Smith v. Shartle, No. CV-18-00323-TUC-RCC, 2020 WL 6781608, at
*1 (D. Ariz. Nov. 18, 2020) and Reese v. Liberty, No. 1:18-CV-00421-JDL, 2019
WL 5549219, at *1 (D. Me. Oct. 25, 2019), are distinguishable as they restricted
client access to sensitive information produced during discovery in a civil action,
as opposed to a proceeding to enforce an administrative subpoena. Likewise, in
Johnson v. Federal Bureau of Prisons, No. 16CV3919AMDCLP, 2017 WL
5197143, at *4 (E.D.N.Y. Nov. 9, 2017), which was also a civil action and not a
suit to enforce an administrative subpoena, the Court found that a protective order
restricting the Bureau of Prisons’ use of the plaintiff’s medical records was
34
GDC argues that it is of no moment that DOJ does not represent inmates
because it “will conduct confidential interviews with GDC offenders” and,
therefore, “GDC must assume that offenders will gain access” to any information
that it produces to DOJ. [Doc. 18 at 12-13; see also Doc. 14 at 21 (stating that
GDC “must assume” unauthorized disclosure of information will occur).] But such
a “presumption runs contrary to the Supreme Court’s instruction that administrative
agencies are entitled to the presumption ‘that they will act properly and according
to law.’” U.S. Dep’t of Educ. v. Nat’l Collegiate Athletic Ass’n, No. 106CV-01333-
JDT-TAB, 2006 WL 3198822, at *8 (S.D. Ind. Sept. 8, 2006) (quoting F.C.C. v.
Schreiber, 381 U.S. 279, 296 (1965)), aff’d as to denial of protective order, 481
F.3d 936 (7th Cir. 2007). Accordingly, the Court is simply unwilling to presume
appropriate, but left it to the parties to negotiate the terms of such an order. United
States v. Basciano, a criminal case in which the court limited disclosure of
cooperating witnesses to the defendant and the defense team, is similarly
distinguishable because the information was provided in the context of a criminal
prosecution with respect to which there would have been no other guardrails against
dissemination. See No. 03-CR-929 NGG, 2007 WL 4555892, at *2 (E.D.N.Y. Dec.
19, 2007), affirmed on reconsideration in part, 2008 WL 123952 (E.D.N.Y. Jan.
11, 2008).
35
that DOJ will violate, either intentionally or inadvertently, CRIPA’s prohibition on
use and disclosures of information obtained via subpoena.11
GDC also makes much of the fact that DOJ has entered into nondisclosure
agreements or consent protective orders with other prison systems. In 2018, for
example, DOJ entered into a nondisclosure agreement with the Alabama
Department of Corrections (“ADOC”) and others that governed the informal
production documents and information in connection with a CRIPA investigation.
[Doc. 14-9 at 30-38.] Likewise, in United States v. Alabama, 2:20-cv-01971-RDP
(N.D. Ala.), DOJ consented to the entry of a protective order similar to the one
GDC proposes in this case. [See Doc. 14-9 at 119-35.] But these documents in
separate proceedings do not compel the entry of a confidentiality protective order
in this case. As an initial matter, the fact that DOJ has willingly agreed to a
nondisclosure agreement or consent protective order in the past merely shows that
11
Although GDC generally contends that the Freedom of Information Act,
the Privacy Act, and DOJ’s “Touhy” regulations are inadequate to protect against
the misuse or improper disclosure of sensitive information [Doc. 14 at 31-32], these
statutes—even if not as watertight as GDC would prefer—still provide an
additional layer of protection on top of CRIPA. Cf. Nat’l Collegiate Athletic Ass’n,
2006 WL 3198822, at *10 (citing Privacy Act and Freedom of Information Act as
providing additional safeguards against misuse or dissemination of information
sought by Department of Education administrative subpoena).
36
DOJ is sometimes willing to enter into an agreement; it does not mean that DOJ is
bound to do so in every CRIPA investigation. Beyond that, DOJ may have agreed
to a protective order with ADOC because ADOC’s production was voluntarily
made, and therefore was not automatically subject to the protections of § 1997a-
1(c), which apply to materials “obtained under a subpoena.” See 42 U.S.C. §
1997a-1(c) (providing protection to documents and information “obtained under a
subpoena issued under [CRIPA]”). Finally, United States v. Alabama also does not
appear to have involved an administrative subpoena issued under CRIPA, but
rather the production of information in discovery in connection with litigation over
prison conditions in Alabama. (See Rogers Decl. ¶ 27.) Ultimately, that DOJ
agreed to nondisclosure agreements or protective orders in different circumstances
does not mean GDC is entitled to a protective order here.
At oral argument, counsel for GDC directed the Court to another Alabama
case, United States v. Dunn, No. 2:18-mc-3837-WKW-GMB (M.D. Ala.), where
the United States moved to enforce an administrative subpoena under CRIPA
against ADOC. That case, however, provides little support for GDC’s position
because the parties resolved their disputes and the United States withdrew its
petition before any court ruling. Dkt. No. 42, United States v. Dunn, 2:18-mc-
37
3837-WKW-GMB (M.D. Ala. May 30, 2019). Thus, the court in that case did not
rule one way or another whether ADOC was entitled to a confidentiality protective
order that extended beyond the protections already afforded by CRIPA.
GDC also argues that Georgia law imposes criminal penalties for the
disclosure of investigation reports and intelligence data prepared by GDC’s internal
investigations unit since they constitute state secrets under Georgia law. [Doc. 14
at 28-29 (citing O.C.G.A. §§ 42-5-36(b), (f)).] GDC further points out that state
law protects the identity of confidential informants who cooperate in remedying
abuses and wrongdoing in the state penal system. [Id. at 29 (citing O.C.G.A. § 42-
5-36(a)).] As a result, GDC states that it “will not subject its employees to criminal
penalties for improper disclosure of this sensitive information without adequate
safeguards.” [Id.] Notably, GDC does not take the position that it is prohibited
from providing this information in response to DOJ’s subpoena, but rather cites
state law as a reason why it wants enhanced protection against disclosure by DOJ.12
12
To the extent that GDC contends that it is unable to provide this
information without violating state law, it is difficult to see how such state law
would not be preempted by CRIPA’s broad authorization to DOJ to subpoena any
document relating to an investigation. See, e.g., Marrache v. Bacardi U.S.A., Inc.,
17 F.4th 1084, 1094 (11th Cir. 2021) (“Conflict preemption occurs where (1)
compliance with both federal and state regulations is a physical impossibility, or
38
But, as discussed above, CRIPA bars DOJ from using information in a CRIPA
investigation for any purpose other than investigating the conditions in an
institution. Moreover, it is important to keep in mind that the purpose of DOJ’s
investigation is to protect the safety of incarcerated individuals; thus, it stands to
reason that DOJ’s interests are aligned with those of GDC and Georgia law to
protect the identity of inmates who complain about prison conditions.
For these reasons, then, GDC’s motion for a protective order should be
DENIED.
III. CONCLUSION
For the foregoing reasons, it is RECOMMENDED that the United States’
petition be GRANTED with the exception of Request No. 26 and that GDC’s
motion for protective order be DENIED.
It is further RECOMMENDED that if the District Judge adopts these
recommendations, that GDC be ORDERED to produce documents responsive to
the subpoena no later than 45 days after entry of the order.
(2)‘the challenged state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.” (citations and quotation
marks omitted)).
39
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