United States District Court, S.D. California
ORDER RE IN CAMERA REVIEW [DOC. NOS. 33,
Karen S. Crawford, United States Magistrate Judge.
Order filed on October 4, 2019, plaintiffs request for
expedited discovery was granted to allow limited disclosure
of documents to support her Motion for Preliminary
Injunction, which is currently pending before the District
Court. [Doc. No. 42.] Defendants then produced to plaintiff a
privilege log, a supporting declaration, and responsive
documents that include redactions based on claims of
privilege and privacy. In addition, as required by the
Court's Order of October 4, 2019, defendants submitted
their privilege log, supporting declaration, and an
unredacted copy of the responsive documents for an in
camera review. [Doc. No. 42, at p. 17.]
filed a Response Re: Documents Submitted for In
Camera Review arguing that the Court should reject
defendants' privilege claims, because some of the
redacted documents are central to plaintiffs case,
defendants' privilege claims are unfounded and
unsupported, and defendants' confidentiality and privacy
concerns can be addressed by an appropriate protective order.
[Doc. No. 48, at pp. 1-7.]
Complaint includes causes of action against the U.S.
Department of Homeland Security ("DHS"), U.S.
Immigration and Customs Enforcement ("ICE"), the
U.S. Customs and Border Protection ("CBP"), and
others for: (1) retaliation in violation of the First
Amendment; (2) violation of the First Amendment's Free
Exercise Clause; and (3) violation of the Religious Freedom
Restoration Act (RFRA). [Doc. No. 1, at pp. 35-41.] Plaintiff
generally alleges that she is a U.S. citizen and a senior
pastor in a Christian church located in New York City. [Doc.
No. 1, at pp. 8.] She ministers to, and advocates for,
immigrant communities, provides pastoral care to migrants in
the United States and Mexico, and leads events to oppose U.S.
immigration policy. [Doc. No. 33, at p. 3; Doc. No. 1, at pp.
5-6, 10.] ¶ 2018, plaintiff helped to organize a mobile
clinic known as the "Sanctuary Caravan." The
Sanctuary Caravan is composed of faith leaders, congregants,
and humanitarian workers who provide pastoral care south of
the U.S. border to several hundred migrants seeking asylum in
the United States. [Doc. No. 1, at p. 11.] The Sanctuary
Caravan provides a wide variety of pastoral services to
migrants and asylum seekers, who often seek sanctuary in a
church, because it is "a recognized place of safety,
comfort, counseling, and religious guidance." [Doc. No.
1, a p. 14.] As an example of a pastoral service she provided
to migrants, plaintiff represents that she "officiated
over Christian marriage ceremonies for migrants who had never
before been able to have a church-blessed wedding."
[Doc. No. 1, at p. 6.] The Sanctuary Caravan partners with an
organization known as Al Otro Lado, which provides legal
services to migrants on both sides of the U.S. border. [Doc.
No. 1, at p. 15.]
on her own experience, news stories that surfaced following
her January 2, 2019 detention, and information she has
obtained from other sources about similar targeting of
journalists, immigration attorneys, and other advocates,
plaintiff contends her rights under the First Amendment and
RFRA have been violated. Plaintiff believes she has been
targeted for "heightened surveillance" and
screening at the border in retaliation for taking part in
protected speech and religious activities that are protected
by the First Amendment. In addition, plaintiff believes that
defendants' policies and practices have severely burdened
and impeded the exercise of her religion in violation of
RCRA. In her Motion for Preliminary Injunction, she seeks an
order requiring defendants to restore her SENTRI status. She
also seeks an order prohibiting defendants from targeting her
for any adverse treatment in the future because of her
protected speech and religious activities in support of
immigrant communities, [Doc. No. 25-1, at pp. 34-35.]
Application of the Official Information or Law Enforcement
common law recognizes a qualified privilege for official
information." Sanchez v. City of Santa Ana, 926
F.2d 1027, 1033 (9th Cir. 1990). This qualified
privilege is sometimes referred to by other names, such as
the "law enforcement privilege" (In re U.S.
Dept. of Homeland Security, 459 F.3d 565, 568
(5th Cir. 2006)) or the "ongoing
investigation privilege" (Youngblood v. Gates,
112 F.R.D. 342, 345 (CD. Cal. 1985)). "To determine
whether the information sought is privileged, courts
must weigh the potential benefits of disclosure against the
potential disadvantages. If the latter is greater, the
privilege bars discovery." Sanchez, 936 F.2d at
civil rights cases, the balancing test "is moderately
pre-weighted in favor of disclosure," but "the
interests of law enforcement. .. and how much weight to
ascribe to them can vary with both the kind of information in
question and the situation in which it is being sought."
Kelly v. City of San Jose, 114 F.R.D. 653, 661-662
(N.D. Cal. 1987). "For example, law enforcement usually
will have a much greater interest in preserving the
confidentiality of names of citizen informants in on-going
criminal investigations than in keeping secret the factual
information provided by percipient witnesses to events that
are long since past and about which there will be no
prosecution or internal affairs follow-up." Id.
defendants' Privilege Log indicates documents or portions
of documents have been redacted and withheld from plaintiff
because they are "Law Enforcement Sensitive." The
Court construes defendants' "Law Enforcement
Sensitive" redactions to be assertions of the official
information privilege or the law enforcement privilege. As
the party asserting the privilege and seeking its benefits,
defendants have the burden of establishing that the privilege
applies. Kelly, 114 F.R.D. at 662, 664, 669. To
satisfy this burden, the government must "offer
competent evidence about how the specific requested
disclosure would harm governmental interests. If the
government makes the equivalent of a prima facie
showing of harm, courts must conduct a situation specific
analysis of the factors made relevant by the request in issue
and the objection to it." Id. at 663, 669.
Competent evidence should include a declaration "from a
responsible official within the agency who has personal
knowledge" explaining "what interests
would be harmed, how disclosure under a protective
order would cause the harm, and how much harm there
would be...." Id. at 669 (emphasis in
documents submitted for in camera review also
include a Declaration by CBP's Acting Deputy Patrol
Agent. The Declaration represents that all documents
submitted for in camera review "have been
maintained by CBP as part of its efforts to investigate, and
gather information on, potential unlawful activities
involving, or related to, caravans of individuals seeking to
enter the United States at or near the San Ysidro Port of
Entry ("SYPOE") in late 2018 and early 2019."
[Defs.' Exh. 7, Lopez Deck, at p. 2, ] According to the
Declaration, release of these documents, "especially the
information redacted from the documents," would make it
more difficult for CBP to "pursue leads" and
continue its investigative efforts "about potentially
unlawful activities with respect to the groups and
individuals identified." Id. The Court finds
that these generalized claims of harm are insufficient to
satisfy defendants' burden to establish that all the
redacted information should be shielded from disclosure.
Based on the Declaration, it is unclear how revealing the
unredacted portions of the investigative documents would make
it more difficult for CBP to pursue leads. The Declaration
also does not address whether "a carefully tailored
protective order" could be entered to protect
defendants' interest in maintaining the confidentiality
of these investigative materials. Kelly, 114 F.R.D.
at 666, 672.
In Camera Review of Documents.
Internal File Identification Codes, E-Mail Addresses, ...