United States District Court, E.D. California
ROBERTO M. GARCIA, Jr. Plaintiff,
MATTHEW M. JUAREZ, Jr., Defendant.
ORDER REQUIRING PRODUCTION BY THE CDCR OF DOCUMENTS
WITHHELD PURSUANT TO THE "OFFICIAL INFORMATION
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).
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.
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.
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).
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).
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).
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.
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).
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
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).
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
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
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
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.
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
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
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).
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 ...