Garcia v. Juarez

          ORDER REQUIRING PRODUCTION BY THE CDCR OF DOCUMENTS WITHHELD PURSUANT TO THE "OFFICIAL INFORMATION PRIVILEGE"

         Roberto M. Garcia Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983, although Plaintiff has been appointed counsel for purposes of this motion to compel and for an upcoming settlement conference. (Doc. 76) Plaintiff filed the Complaint commencing this action on May 8, 2012. (Doc. 1.) This case now proceeds on the First Amended Complaint, filed on June 14, 2013, against defendant Sergeant Matthew M. Juarez, Jr. ("Defendant") for excessive force. Specifically, Plaintiff alleges that, on May 23, 2011, Defendant Juarez kicked him with extreme force, pulled Plaintiff's arm behind his back, which injured Plaintiff's shoulder, and used profane and hostile statements. (Doc. 11, at 5).

         Following the incident, the Office of Internal Affairs conducted an investigation of the incident. Defendant, and later the prison, withheld all documents at all associated with that investigation on the basis of the official information privilege. After much litigation, the Court required the prison to provide the documents from that investigation for review in camera. As described below, those documents are composed of reports and interviews from percipient witnesses about the underlying event, as well as the conclusions of the Office of Internal Affairs.

         Recognizing the importance of security issues concerning the prison, the Court has performed an exhaustive examination of the law regarding the official information privilege and evaluated the documents consistent with the courts' guidance. The Court finds that, with limited exception, the documents should be produced to Plaintiff because the importance of those documents to the Plaintiff's case and truthfinding in this matter outweighs the asserted security interests.

         I. BACKGROUND

         Plaintiff first requested a "copy of the report of the investigation conducted by Internal Affairs Agent M. Dunlop concerning Defendant's misconduct" on December 28, 2014. (Doc. 41, p.13). Defendant Juarez objected to that request on multiple grounds including "irrelevant, " but ultimately stated that Defendant did not have possession of the requested document. (Doc. 41, p.24).

         On July 16, 2015, Plaintiff filed a request for non-party discovery requesting documents and information "concerning the investigation conducted by the Office of Internal Affairs on this matter . . . ." (Doc. 44, p. 4) Defendant Juarez again objected on grounds including that they included Peace Officer personnel files that implicated the Officer's privacy interests and "should not be ordered produced except upon a compelling showing of relevance, " because "[t]here is typically private information in personnel records . . . ." (Doc 45, p.3). Defendant Juarez also referred to California Evidence Code section 1040, which is a California law allowing a public entity to refuse to disclose official information acquired in confidence by a public employee if "there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice." Cal. Evid. Code § 1040. That Evidence Code section also provides that "In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered." Cal. Evid. Code § 1040. Defendant Juarez supported his argument stating "The CDCR has a very real concern that the release of the confidential records could endanger the health and safety of the individuals to whom the records pertain" and "could precipitate such acts of violence and lead to the death of or serious bodily injury to inmantes, personnel of the CDCR, and even third parties outside the CDCR facilities, especially in the context of gang-affiliated matters." (Doc 45, p.3-4). Defendant also stated that "The requested documents may include descriptions of law enforcement tactics and investigative information and techniques." (Doc. 45, p. 4). Finally, Defendant argued that the documents were protected under privacy rights, which cover information such as the "social security number, physical description, home adddress, and home telephone number." (Doc. 45, p. 5).

         This Court granted Plaintiff's motion to issue the subpoena on November 17, 2015. (Doc. 51). Pursuant to a separate request by Plaintiff, the Court also issued a subpoena on the California Department of Corrections and Rehabilitations ("CDCR") on December 8, 2015. (Doc. 55).

         On February 26, 2016, the CDCR filed a motion to quash the subpoena for failure to provide a reasonable time to reply. (Doc. 60). The Court granted the motion to quash in part, providing additional time to respond to the subpoena. (Doc. 62).

         On April 1, 2016, the CDCR filed a "Notice of Compliance" with the order, stating that "On April 1, 2016, the CDCR responded to the subpoena in compliance with the Court's order." (Doc. 65).

         The Court held a status conference on April 26, 2016, and learned the the CDCR had not produced any documents in response to the subpoena except those in Plaintiff's C-file, and otherwise had withheld all responsive documents as privileged. (Doc. 71, p. 3). The Court gave Plaintiff leave to file a motion to compel. (Doc. 71, p.3) The Court also appointed counsel for Plaintiff for the limited purposes of assisting Plaintiff to bring a motion to compel responses and documents from the CDCR that the CDCR has claimed are privileged, as well as assisting Plaintiff with preparing for and participating in a settlement conference. (Doc. 76). Plaintiff filed a motion to compel discovery from the CDCR on May 23, 2016. (Doc. 74). It argued that the documents being withheld were not privileged under the law, and it attached the privilege log from the CDCR. Along with that privilege log, the CDCR also included a Declaration in Support of the Privilege, which represented the following regarding the Investigation files:

I have reviewed the document identified as three in the privilege log. This document is confidential. The report was prepared by a special agent in the Office of Internal Affairs as part of his duty to investigate allegations of excessive force. The document contains statements made by four inmate witnesses who provided the information with the understanding that it would remain confidential. Release of the document could jeopardize their safety and inhibit other inmates from providing truthful accounts in future investigations. Further, the document contains information concerning law enforcement techniques that, if released, would threaten institutional security. Finally, the report contains confidential personnel information concerning a correctional officer. (Doc. 74, p.14).

         The CDCR opposed the motion to compel, on the basis of information provided in the declaration, and requested in camera review of the documents. (Doc. 78). The Court ordered delivery of the withheld documents in camera. (Doc. 81). CDCR delivered the documents on June 30, 2016.

         II. LEGAL STANDARDS

         The 9th Circuit has rarely and only briefly discussed the official information privilege. The 9th Circuit case most frequently cited for the privilege is Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), aff'd 426 U.S. 394 (1976). In Kerr, the 9th Circuit examined the government's claim of the official information privilege as a basis to withhold documents sought under the Freedom of Information Act. The court ultimately let stand a district court order requiring production of personnel files from members and executive personnel of the California Adult Authority, over the government's privilege objection. The Court rested its decision primarily on the government's use of a blanket objection rather than a specific privilege claim as to a particular document or class of documents. In doing so, it made the following comments about the contours of the privilege:

Petitioners further argue, however, that established principles of California law and federal law create an absolute or qualified privilege for the personnel files . . . .

The claim of privilege under California law is based upon California Evidence Code s 1040, and California Government Code §§ 6250-6260 and 6254(f) (Supp. 1974). However, the civil rights action was instituted in federal court under a federal statute, 42 U.S.C. § 1983, which was enacted particularly to vindicate federal rights against deprivation by state action. . . . In federal question cases the clear weight of authority and logic supports reference to federal law on the issue of the existence and scope of an asserted privilege. . . .

Petitioners also contend that the common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) covers the requested documents.

These cases, however, indicate that this is only a qualified privilege, contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken, as in this case.

Kerr v. U.S. Dist. Court for Northern Dist. of California, 511 F.2d 192, 198 (9th Cir. 1975) aff'd 426 U.S. 394 (1976) (internal citations and quotations omitted). Thus, the Kerr court made clear that (1) there is no absolute privilege for government records, (2) federal common law governs, (3) the official information privilege is a qualified privilege, and (4) the privilege depends on the competing interests of the litigant and the governmental entity.

         Given that this is a common law privilege, it is worth examining the two cases relied on by the 9th Circuit and cited by the government in Kerr in support of their official information privilege claim. In Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 792-795 (D.C. Cir. 1971), the D.C. Court of Appeals affirmed a district court's order compelling the government to submit documents for in camera inspection, and provided the following explanation of the privilege issues involved:

Documents such as those encompassed in the District Court's order would normally remain part of the internal files of the agencies involved in the absence of an appropriate demand. When such demand is made in conjunction with discovery sought in the courts, the settled rule is that the court must balance the moving party's need for the documents in the litigation against the reasons which are asserted in defending their confidentiality.

The government's interest in confidentiality is plain where the documents make reference to military or diplomatic secrets. But plaintiffs indicated clearly that they seek no such secrets, and the District Court's order explicitly provides that the government is not required to produce any documents or parts of documents which contain such secret material.

The government may still have an interest, however, in avoiding disclosure of documents which reflect intra-executive advisory opinions and recommendations whose confidentiality contributes substantially to the effectiveness of government decision-making processes. In camera inspection of allegedly privileged documents-as ordered here by the District Court-is a procedure approved by the courts at least where, as here, military and diplomatic secrets are not at issue. Of course, the party seeking discovery must make a preliminary showing of necessity to warrant even in camera disclosure, but there is no claim on this appeal that plaintiffs have not made such a showing or that the District Court's order is erroneous for lack of such a showing.

Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 791-92 (D.C. Cir. 1971).

         The second case that the government had relied on in Kerr was the 5th Circuit case of Carr v. Monroe Mfg. Co. 431 F.2d 384, 388-89 (5th Cir. 1970), in which the Court of Appeals affirmed a district court order requiring production of records from the State Employment Security Commission without redacting names and addresses of applicants for employment. The relevant part of the Court's analysis is as follows:

The granting or withholding of any privilege requires a balancing of competing policies. The claim of governmental privilege is no exception; in fact, the potential for misuse of government privilege, and the consequent diminution of information about government available to the public, is one more factor which strongly suggests the need for judicial arbitration of the availability of the privilege. That the need for discovery of communications with a state governmental agency arises in a ...