TITLE FIVE — PRIVILEGES AND DISQUALIFICATION
Rule 506. Investigatory Privilege
Privilege. Unless otherwise required by law, information given to governmental authorities in order to secure the enforcement of law is subject to disclosure only within the discretion of the governmental authority.
Law Enforcement Records and Operational Files. The privilege stated in Rule 506(a) extends to:
law enforcement records and information, which 9 R. Stat. § 123.002(g) exempts from disclosure under the Freedom of Information Act;
the operational files of the State Bureau of Investigation that the Special Agent-in-Charge, with the coordination of the Attorney General, has exempted under 9 R. Stat. § 122.001;
the operational files of the Defense Department that the designated chief of the military intelligence apparatus, with the coordination of the Secretary of Defense, has exempted under 9 R. Stat. § 122.101; and
information whose disclosure would compromise an ongoing criminal investigation, or an evaluation, investigation, or audit under the State Auditor Act, 2 R. Stat. § 512.106(b).
The privilege does not extend to a non-operational file, which remains subject to search and review under 9 R. Stat. §§ 122.003 and 122.103, and does not extend to an exempted operational file so far as it is subject to search and review by the Senate Public Safety and Intelligence Committee or by the Justice Department under 9 R. Stat. §§ 122.002 and 122.102.
Deliberative Material. The privilege extends to an inter-agency or intra-agency memorandum or letter that is pre-decisional and deliberative, being an expression of opinion, recommendation, or advice made in the course of formulating a governmental decision, as recognized by 9 R. Stat. § 123.002(e). The privilege does not extend to:
a purely factual portion of such a document that can be separated from the deliberative portion;
a decision, order, policy, directive, or statement of reasons once adopted, or a document expressly adopted or incorporated by reference in such a decision; or
a document created to conceal or to explain away misconduct.
Identity of an Informer. The State has a privilege to refuse to disclose, and to prevent a person from disclosing, the identity of a person who has furnished information to a governmental authority in order to secure the enforcement of law. The privilege does not apply where:
the identity of the informer has been disclosed by the authority or by the informer;
the informer appears as a witness for the State;
the informer participated in the offense charged or was a percipient witness to it, and the court finds that the informer’s identity is essential to a fair determination of the issue of guilt or of the lawfulness of a search or seizure; or
disclosure is otherwise required by Const. art. I, § 6, or by Rid. R. Crim. P. 14.
Where the court sustains the privilege as to identity, it may nevertheless order the disclosure of the substance of the information furnished, in a form that does not identify the informer.
Who May Claim. The privilege may be claimed only by the governmental authority that holds the information, acting by the officer having authority over the matter, by the head of the agency, by the Attorney General, or by a state attorney authorized to claim it. A claim by a peace officer without such authority is insufficient, and the court shall allow a reasonable period, stated in hours, for the authority to make or decline the claim.
Manner of Claim. Rule 501 governs the claim. In addition, the claim shall identify the record, file, or information withheld by the description required by Rule 501(g)(3), shall state the specific harm to the enforcement of law, to an ongoing investigation, to the safety of a person, or to the confidentiality of a source that disclosure would cause, and shall state whether the information sought exists in a form that may be disclosed with the sensitive matter omitted.
In Camera Review; Balancing. The court may examine the withheld material in camera under Rule 501(i). In determining whether the privilege shall be sustained the court shall consider the specific harm asserted; whether the investigation to which the material relates is ongoing or closed; the importance of the material to the claim or defense of the party seeking it; the availability of the same information from another source; whether the material may be disclosed in a redacted or summarized form prepared by the authority and delivered directly to the party without being filed; and, in a criminal case, the defendant’s rights under Const. art. I, § 6.
Limits.
Exculpatory Facts. The privilege never withholds a fact of an exculpatory nature. The prosecution shall disclose such facts as Rid. R. Crim. P. 14(a)(1)(A)(iii) requires, whatever the classification, exemption, or file in which they are found.
The Court. The privilege is not a ground for withholding material from the court upon an examination under Rule 501(i).
The State Auditor. Before the State Auditor, the privilege is subject to 2 R. Stat. §§ 511.101(b), 512.008, and 512.009, and no defence of governmental privilege bars the enforcement of the Auditor’s subpoena.
A Party’s Own Statement. The privilege does not withhold from a person that person’s own statement made to a governmental authority.
The Freedom of Information Act Is Not a Discovery Device. The exemptions stated in 9 R. Stat. § 123.002 mark the outer bound of the privilege recognized by this rule. They do not enlarge the discovery a party may obtain, and a denial or a grant of a request under 9 R. Stat. §§ 123.001 through 123.004 neither establishes nor defeats a claim of privilege in a proceeding.
No Retroactive Exemption. An exemption of an operational file made after the information was sought in a proceeding does not defeat an order of the court already entered.
Consequence of a Sustained Claim in a Criminal Case. Where the court sustains the privilege as to material the defendant has shown to be material to the defense, the court shall order such relief as justice requires, and may:
require the State to produce the material in a redacted or summarized form, or to stipulate to the facts the material would tend to prove;
strike the testimony of a witness whose account cannot fairly be tested without the material;
preclude the State from offering evidence upon the subject to which the material relates;
instruct the fact finder that a fact is taken as established against the State; or
dismiss the charge, where no lesser measure will secure a fair trial.
No Sealing. Material as to which the privilege is claimed shall not be tendered to the electronic filing system. Rule 501(j) and Rule 501(k) govern the presentation, the examination, and the preservation of such material.