United States District Court, N.D. California, San Jose Division
ORDER RE MAY 7, 2019 JOINT DISCOVERY LETTER Re: Dkt.
Virginia K. Demarchi United States Magistrate Judge.
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.
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
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.
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.
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.
Law Enforcement Privilege
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).
plaintiffs observe, the Ninth Circuit has not formally
recognized a law enforcement privilege in the context of
discovery in a civil action. 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.
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.
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.
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.
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. 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.
Deliberative Process Privilege
“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
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.