Sec. 50-41. Discovery.
(a) When any case is pending in municipal court and the defendant wishes the production of any internal affairs unit or personnel files, the following criteria shall apply:
(1) The charges must allege an actual application of physical force by one or more police officers upon the person of the defendant or must allege the actual application of physical force upon the person of one or more police officers by the defendant.
(2) The defendant must, before a subpoena duces tecum issues, make an initial showing to the court why the production of such files is reasonable and necessary in the preparation of his or her defense. This showing may be done ex parte, but there shall be a record made thereof.
(3) Any files so subpoenaed to be produced shall be limited to those involving allegations of excessive use of force, brutality, or misrepresentation or untruthfulness on the part of the officer involved.
(4) Service of the subpoena duces tecum shall be made not later than ten working days prior to the date required for the production of the designated files in court. Nothing in this section shall be deemed to limit the right of the police department to move to quash the subpoena duces tecum.
(b) Upon production of the subpoenaed files in court, they shall be presented to the judge sealed and under confidential cover. The judge shall then proceed to review the files in camera in a confidential manner. After the judge has reviewed the subpoenaed files, he or she shall determine whether or not to release some or all of the information contained in such files to the defendant and the prosecution. In making this determination, the judge shall apply, at a minimum, the following factors:
(1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information.
(2) The impact upon persons who have given information of having their identities disclosed.
(3) The degree to which governmental self-evaluation and consequent programs improvement will be chilled by disclosure.
(4) Whether the information sought is factual data or an evaluative summary.
(5) Whether the information sought is available through other discovery or from other sources.
(6) The importance of the information to the defendant's case.
(c) If the court determines that some or all of the materials shall be released to the defendant and the prosecution, it shall make specific findings of relevance as to individual items of material contained in the files; the court shall further disallow discovery of those materials, if any, which it determines to be irrelevant to the defendant's case. If, after in camera review, the court determines that none of the material contained in the subpoenaed files should be released to the defendant and the prosecution, it shall so find, and shall seal the materials and keep them with the court file. The seal shall not be broken except upon the order of a court of competent jurisdiction.
(d) If the court intends to release any material contained in the subpoenaed files to the defendant and the prosecution, the court shall so inform the chief of police, in writing, of its intent to so release such material, and of the specific nature of the material intended to be released. This notification shall be made at least ten working days prior to the date upon which the release is to be made.
(e) At the time of release of the designated materials to the defendant and the prosecution, the court shall also issue a protective order to both the defendant and the prosecution, the terms of which shall, at a minimum, include:
(1) Access to any materials provided to the defendant and the prosecution shall be limited to the attorneys and the defendant.
(2) If the court allows any copies to be made, all copies are to be returned to the court at the conclusion of the case, to be retained in a sealed file as part of the court file.
(3) Release of any information contained in the subpoenaed files shall be used solely for the defense or prosecution of the instant case.
(4) The court retains continuing jurisdiction for purposes of enforcing compliance with the protective order and any violation of the order may subject the offending party to contempt or other sanctions.
(f) The costs for reproduction of any of the materials subpoenaed by the defendant shall be paid by the defendant prior to such copying. Such costs shall be those customarily charged by the police department to the public for the copying of police reports. (Code 1979, § 25-20)