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Doe v. McaLeenan

United States District Court, N.D. California, San Jose Division

September 6, 2019

JANE DOE 1, et al., Plaintiffs,
KEVIN K. MCALEENAN, et al., Defendants.

          ORDER RE MAY 7, 2019 JOINT DISCOVERY LETTER Re: Dkt. No. 180

          Virginia K. Demarchi United States Magistrate Judge.

         The parties dispute whether defendants may rely on the law enforcement and deliberate process privileges for redactions they have made to certain documents produced during jurisdictional discovery, and whether defendants may also redact as “non-responsive” material that does not concern the agency activity at issue in this case. Dkt. No. 180. After the parties filed a joint submission, defendants filed four supporting declarations. Dkt. Nos. 192, 193, 194, 195. With the Court's permission, plaintiffs submitted supplemental briefing addressing these supporting declarations. Dkt. No. 205. The Court held a hearing on this matter on July 9, 2019. Dkt. No. 208.

         For the reasons explained below, the Court sustains in part and overrules in part defendants' claims of law enforcement privilege and deliberative process privilege. The Court also sustains in part and overrules in part defendants' redactions of certain information as “non-responsive.”

         I. BACKGROUND

         In this action, plaintiffs seek review under the Administrative Procedures Act (“APA”) of changes defendants allegedly made to the Lautenberg-Specter program for processing the refugee applications of Iranian religious minorities. Dkt. No. 1 ¶¶ 95-96. Defendants contend that there is no final agency action to review, as no changes were made to the Lautenberg-Specter program; rather, U.S. Citizenship and Immigration Services (“USCIS”) simply began using information derived from enhanced security screening techniques as part of its overall consideration of applicants' admissibility. Dkt. No. 96 (Section V.C.); Dkt. No. 100 at 6-7. The Court permitted plaintiffs to take jurisdictional discovery regarding the nature of the agency action at issue. Dkt. No. 102.

         Defendants' document production includes key policy documents explaining the Security Advisory Opinion (“SAO”) vetting changes. Dkt. No. 180 at 3. The parties agree that these documents are critical to resolution of the jurisdictional question in this matter, as they concern the nature of the changes at issue in plaintiffs' remaining claim for relief. Id. Plaintiffs say that defendants have improperly invoked the law enforcement and deliberative process privileges with respect to these documents, which are so heavily redacted that plaintiffs cannot decipher them. Id. In addition, plaintiffs contend that, having identified these documents as responsive to plaintiffs' document requests, defendants should not be permitted to redact portions of them as “non-responsive.” Id. The parties' dispute concerns similar redactions made to documents applying the vetting changes to individual applicants' cases, which defendants have also agreed to produce as part of jurisdictional discovery. Id.

         For purposes of this dispute, the parties have selected an agreed-upon sample of 57 redacted documents for which defendants have provided a privilege log, encompassing more than 300 discrete claims of privilege or non-responsiveness. Defendants have submitted unredacted copies of the 57 documents for in camera review.


         A. Law Enforcement Privilege

         According to defendants, the “law enforcement privilege” protects from disclosure information whose release would be contrary to the public interest in the effective functioning of law enforcement because disclosure would undermine the integrity of law enforcement techniques. Id. at 10 (citing A.N.S.W.E.R. Coalition v. Jewell, 292 F.R.D. 44, 50 (D.D.C. 2013).

         As plaintiffs observe, the Ninth Circuit has not formally recognized a law enforcement privilege in the context of discovery in a civil action.[1] Id. at 3 n.3. However, several other courts of appeal and several district courts within the Ninth Circuit have recognized such a privilege, and plaintiffs do not challenge the existence of such a privilege here. See In re City of New York, 607 F.3d 923, 940-41 (2d Cir. 2010); Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 64 (1st Cir. 2007); Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1124-1125 (7th Cir. 1997); In re Dep't of Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006); In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988); Wagafe v. Trump, No. C17-94 RAJ, 2018 WL 1737939, at *2 (W.D. Wash. Apr. 11, 2018); Hampton v. City of San Diego, 147 F.R.D. 227, 230-31 (S.D. Cal. 1993); Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992); Kelly v. City of San Jose, 114 F.R.D. 653, 669- 70 (N.D. Cal. 1987); see also Dkt. No. 209.

         As described by other courts, the law enforcement privilege protects against disclosures that would reveal confidential sources, law enforcement techniques, and the identities of witnesses and law enforcement personnel. It also safeguards the privacy of those involved in a criminal investigation and otherwise prevents interference with a criminal investigation. City of New York, 607 F.3d at 940-41, 944, 948; In re Sealed Case, 856 F.2d at 27. The party asserting the privilege bears the burden of showing that the privilege applies. City of New York, 607 F.3d at 944. The privilege is qualified, not absolute, and must give way when the needs of a particular litigant for access to the information outweigh the public interest in non-disclosure. Id.; In re Dep't of Homeland Sec., 459 F.3d at 569; In re Sealed Case, 856 F.2d at 272.

         While the parties generally agree on what the privilege protects, they disagree regarding how the privilege should be invoked and applied. A claim of law enforcement privilege must be supported by the declaration of an appropriate agency official who has personally considered the materials at issue. See, e.g., Landry v. F.D.I.C., 204 F.3d 1125, 1135-36 (D.C. Cir. 2000) (discussing cases). Some courts hold that once a court determines that the privilege applies, a presumption of non-disclosure arises that may only be overcome by a showing of compelling need for the information. See, e.g., City of New York, 607 F.3d at 944. Others simply hold that the court must weigh the government's interest in non-disclosure against a party's need for the documents. See, e.g., In re Dep't of Homeland Sec., 459 F.3d at 570.

         The Court is not persuaded that the analytical framework for the “official information privilege” described in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987), which plaintiffs cite, applies to this dispute. By its own terms, the Kelly framework is tailored to address the competing interests involved when a plaintiff in a federal civil rights case seeks information from a state or local law enforcement agency. Kelly, 114 F.R.D. at 659-60. By contrast, this dispute arises in a case seeking review of federal agency action under the APA. While the thoughtful and comprehensive discussion in Kelly may inform the resolution of the contested privilege issues in this case, neither the framework nor its specific procedural requirements must be followed here.

         In assessing whether a litigant's need for information outweighs the public's interest in non-disclosure, courts consider several 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 program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case.[2] See United States v. Larson, No. 12-CR-00886-BLF-1, 2014 WL 5696204, at *4 (N.D. Cal. Nov. 4, 2014); Kelly, 114 F.R.D. at 663-68.

         B. Deliberative Process Privilege

         The “deliberative process privilege” is well-defined by the Supreme Court and in the Ninth Circuit. The deliberative process privilege protects the decision-making processes of government agencies. To that end, the privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (internal quotation marks omitted). “A document must meet two requirements for the deliberative process privilege to apply. First, the document must be predecisional-it must have been generated before the adoption of any agency's policy or decision.” FTC v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Second, the document must be deliberative in nature, containing opinions, recommendations, or advice about agency policies.” Id. “Purely factual material that does not reflect deliberative processes is not protected.” Id.

         Like the law enforcement privilege, the deliberative process privilege must be supported by the declaration of an appropriate agency official who has personally considered the materials at issue. See, e.g., In re McKesson Gov'tal Entities Average Wholesale Price Litig., 264 F.R.D. 595, 601, 602 (N.D. Cal. 2009) (discussing cases). Also, like the law enforcement privilege, the deliberative process privilege is qualified, not absolute. “A litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding overrides the government's interest in non-disclosure.” Warner, 742 F.2d at 1161. In weighing the competing interests, a court may consider: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government's role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. Id.


         A. Invocation ...

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