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No 'Self-Critical Analysis Privilege,' Says Ill. Supreme Court

By Mark Wilson, Esq. on March 23, 2015 | Last updated on March 21, 2019

Last week, the Illinois Supreme Court declined to invent a new evidentiary privilege called the "self-critical analysis privilege," suggesting instead that if such a thing were to exist, it would be the state legislature's job to create it.

The case involves the death of a seven-month-old child while the child and her mother were in a state program for reuniting families.

Wrongful Death

The child, seven-month-old Marshana, was initially placed with a relative and then, when she began to improve, placed back with her mother at One Hope, where she drowned when left unattended while her mother was bathing her. The guardian claimed that Marshana shouldn't have been returned to One Hope.

A guardian appointed to administer the deceased child's estate sued the program, One Hope United, along with one of its employees and the child's mother, for wrongful death.

During discovery, the guardian tried to obtain a report of Marshana's case, which would have documented One Hope's successes or failures in helping Marshana. One Hope refused to turn the report over, citing the "self-critical analysis privilege," which ostensibly protects internal critiques and evaluations from disclosure.

New Privileges Are Not So Easily Created

The privilege in question dates to a 1970 case from the District of Columbia federal district court, where the court acknowledged the existence of such a privilege to allow medical staff to candidly evaluate the success of medical procedures and treatments for internal review. Other federal courts have recognized the existence of such a privilege, but others have disagreed with the idea that courts should be in the business of creating new privileges.

The Illinois Supreme Court agreed with the latter group, citing to two prior appellate court opinions that rejected the existence of the privilege. In one case, a Catholic diocese tried to use it to shield internal investigation documents from discovery in a claim of molestation. In the other, a police department tried to block FOIA disclosure of an internal survey.

Both times, the appellate court emphasized that privileges are "strongly disfavored because they operate to exclude relevant evidence" and shouldn't be applied unless "they promote sufficiently important interests to outweigh the need for probative evidence."

The Court agreed with the appellate court in this case that existing legislation designed to examine the deaths of children "overrides the desire of One Hope to keep its self-evaluations confidential."

This isn't to say that courts can never create new privileges, but the public policy reason has to be compelling. The "deliberative process privilege," for example, protects from disclosure negotiations made during collective bargaining strategy sessions. Unlike internal evaluations, there's a strong policy interest toward keeping confidential union strategizing information actually confidential, especially since existing law manifested a legislative intent that union strategy sessions be kept secret.

In this case, however, what the legislature had to say about investigating child deaths pointed toward more, not less, disclosure.

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